Upon a careful consideration of the instructions given to the jury in this case, taken, in connection with the pleadings and the prayer of the defendants for a different ruling, we are of the opinion that the verdict cannot be maintained. The plaintiff, in his declaration, alleges that he is the rnvner of land across which is “ a certain brook accustomed to *195run in its natural channel from time immemorial,” from said land across the land of the defendants into a pond, and that the defendants did wrongfully “ fill up the channel of said brook, and construct an embankment or dam across the same.” The defendants, in their answer, deny “ there was a certain brook, as described in the plaintiff’s declaration,” accustomed to run as therein alleged, and if there was any such brook, they further deny the construction of any embankment across the same, as set forth in the declaration. It is manifest that the main issue between the parties, on these pleadings was, upon the question of the existence of a brook or stream of water. It was averred by the plaintiff and denied by the defendants, and constituted the gist of the case, without proof of which the plaintiff could not maintain his action. It was not enough, therefore, for the plaintiff to prove, in support of his declaration, a mere right of surface drainage from his land on, through, and over that of the defendants’ in the' spring and autumn, and at other times when the water was high, without proof of a stream or brook within the channel of which the water regularly run. He had averred no such right, and if he proved it, it was an entire variance between his allegation and proof, and established a case different from that set out by him in his declaration, and one which the defendants were not bound to meet. Nor is such a variance by any means immaterial. A mere right of drainage over the general surface of land is very different from the right to the flow of a stream or brook across the premises of another. There is a broad distinction between a regular flowing stream and occasional and temporary outbursts of water, which in times of freshets fill up low and marshy places, and run over and inundate adjoining lands. To maintain the right to a watercourse } or brook, it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides. It need not be shown to flow continually; it may be dry at times, but it must have a well defined and substantial existence. Angell on Watercourses, § 4. Shields v. Arndt, 3 Green Ch. R. 234, 246; Luther v. Winnisimmet Co. 9 Cush. 171. We are apprehensive that this distinction was *196not sufficiently regarded in the instructions to the jury at the trial of this case, and that the rights of the parties may have been misapprehended, and the evidence misapplied in making up the verdict. The question at issue between the parties was, not whether the plaintiff had a remedy against the defendants for obstructing water which had been accustomed to drain off from the land of the plaintiff on and over that of defendants, although there was no stream within the channel of which the water regularly ran, but whether there was a brook or watercourse through defendants’ land, in the legal sense of those words, which the defendants had obstructed to the plaintiff’s injury, as alleged in the declaration.
The exception taken to the refusal of the court to permit a witness to expose certain marks alleged by him to exist upon his body cannot be sustained, for various reasons. In the first place, we think iriwas a matter of discretion with the presiding judge to decide whether the marks should be shown, to be determined upon his view of the fitness and propriety of the act, to which no exception lies. In the next place, it was an attempt by a party to corroborate his own witness before he was impeached on cross-examination or otherwise, which was clearly inadmissible. Deshon v. Merchants’ Ins. Co. 11 Met. 199-209. And lastly and chiefly, the fact sought to be shown was wholly immaterial and irrelevant, and had no tendency to confirm the evidence of the witness in any matter in issue. If the marks did exist on his body, as testified by him, that fact did not confirm his statement as to the place and time when the blows, which caused the scars, were inflicted, nor that they were given under the circumstances stated by the witness. These facts, which were the only material ones, would have still been proved solely by the unsupported testimony of the witness.
New trial gremted.