delivered the opinion of the Court. The defendants justify entering upon the plaintiff’s land and filling up a trench which he had made there, because, as they allege, the trench was a nuisance to them, inasmuch as it was made, and was in fact used, for the purpose of taking off the water from heir reservoir in Hayden pond.
The case finds that the plaintiff had an ancient privilege of *310watering his mowing land below Hayden pond and near brs saw mill, at any and all times. This finding was the result ol the evidence at the trial, which clearly proved that the plaintiff and those under whom be claims, have used this right oi irrigation for more than forty years ; and that it was so used immediately after haying.
The defendants’ dam at the outlet of Hayden pond, for a reservoir, was built in 1819. The trench was dug by the plaintiff in 1825, for the purpose of getting the water, and as much as would have run in its natural courses, to his saw-mill pond, but his saw mill was not built until 1826 ; though the darn to his pond there was built before that time and was used to raise a head of water for the purposes of irrigation. The trench had the capacity to take off three feet of the surface of the Hayden pond reservoir, if the flumes which were in it were kept open. There was contradictory evidence as to the quantity of water which the plaintiff in fact obtained by means of the trench. The jury were instructed as is set forth in the report of the case.
But the defendants contend that the instruction should have been, “ if the water had not been unreasonably detained, the plaintiff had no right to open the trench into Hayden pond and take off the water ; that they had a right to detain the water to some extent; that such a right is indispensable to the enjoy ment of mill power ; and that when water is detained for mill purposes only, the question is, whether it is, or not, unreasona bly detained, to the injury of the proprietor lower down the stream ; and that as the waters of Mansfield brook and of Hayden pond were united before they reached the plaintiff’s dam, the detention of the water as the defendants detai'.ed it, was in no way to be distinguished from a detention by a dam across Mansfield brook, as it all eventually ran to the plaintiff’s mill pond.”
The defendants in effect requested such instruction to be given to the jury. But we are now to take it that such instruction was not given, but only the instruction which is above set forth.
It has been said at this argument, that at the trial not much attention was paid to the pleadings, either by the counsel o *311by the court. That was the fact; and.it is to be regretted that more attention was not paid to the issue joined by the parties upon this part of the case. It would have prevented much controversy. We must look now into the whole record, and if such instruction should have been given, as the defendants contended for, a new trial should be granted. If it would have been irrelevant to the issue, it would seem to be equally clear that the court ought not to have given it.
Now the defendants, in their third plea, claim a right to dam and pen up the water in Hayden pond as high as they please, and to draw it off whenever they think fit. This right is denied by the plaintiff, in his replication.
The defendants do not, even in argument, contend for such a right, but only for a modified or qualified right to detain the water for mill purposes, in a reasonable manner. Their counsel requested the judge to instruct the jury, that they had a right to detain it to some extent, in a reasonable manner, for mill power. But if the jury had been so instructed, of what benefit would it have been to the defendants ? How could the qualified right to use the water reasonably, so as not to prejudice the proprietors below, maintain the absolute right to draw off the water just when they saw fit to do so, with or without reason, just as it should please themselves ? The claim set up by the defendants in their plea, is subversive of the prescriptive right of the plaintiff to use the water as heretofore he has done, for the purpose of irrigation, as well as of his right to the use of.it for mill purposes, upon his own land. The jury could not find a verdict for the defendants upon this issue, without affirming an unlimited right in them to detain the water ad libitum. If the defendants do not maintain such a right, they must fail. The jury must find that they did the alleged trespass for the cause or reason by them set forth. The burden of proof is upon them. Any other right short of that pleaded in justification, could not have been properly given in evidence, or have been declared by the court in their charge to the jury, as relevant, or as a sufficient matter of defence for the defendants.
In this view of the case the inquiry that wras made towards the close of the cause, and after the charge had commenced, *312was wholly immaterial; for if the defendants failed to establish by proof the right set forth as their justification, it was a matter of no consequence to settle, whether the plaintiff drew more or less water through the trench, than would have passed in the natural run of the brooks.
It may be said that the proof of a qualified right might weigh with the jury in regard to the damages, as it would rebut any claim as for a wanton trespass ; but the jury have given only nominal damages.
All that the jury have affirmed in their verdict is, that the defendants have not an absolute unqualified right to stop and pen up the waters of Mansfield brook and Hayden pond without any regard to the plaintiff’s right to the use of the same for irrigation and mill power. And as before observed, the defendants themselves do not, even in argument, contend that they have such an unqualified right as they have set forth in their plea. A new trial would clearly be of no utility to the defendants as the facts and the pleadings now stand.
And in this stage of the cause the Court would not be disposed to allow thé defendants to plead new matter of justification. If the parties are disposed to litigate this subject fur1 r hereafter in any other action, the precise rights which the defendants now claim may be raised' by the pleadings, and the Court is not inclined to anticipate the opinions that may be given when the points may be more properly presented.
Morton J. dissented.
Judgment according to verdict.