Of the many exceptions taken by the complainants to the rulings of the court, at the trial of this case, a few only are now insisted upon, which we proceed to consider and dispose of in their order.
1. The evidence to prove that the master workman, when erecting the old dam, stated a reason for building it with a curve in its centre, was rightly excluded. It was the declaration of a third party, and in its nature mere hearsay evidence. Nor was it competent as part of the res gesta. The mode in which the dam was built was a distinct, palpable fact, capable of clear and absolute proof. No declarations concerning it, or the reasons for constructing it in a particular manner, could prove this fact more fully or satisfactorily. It was an act which declarations could "not illustrate, explain, or in any way characterize. It is only when the thing done is equivocal, and it is necessary to render its meaning clear, and expressive of a motive or object, that it is competent to prove declarations accompanying it, as falling within the class of res gesta.
2. For the same reason we think the evidence of the directions given by the respondent as to fixing the height of the old dam, and erecmg the new dam of the same height, were incompetent. They did not in any degree tend to make more clear, or give any peculiar significance to any act or transaction, which was properly the subject of inquiry before the jury. The facts to be proved—the height of the old dam, and the erection of the new one by a mark fixed on a level with the old—could not be shown or made more clear by declarations or directions of the respondent. They were capable of direct proof. Besides, the acts done, and which were the only legitimate subjects of proof, were wholly disconnected from, and independent of, the diree*585tians of the respondent. They were subsequent in point of time, and not necessarily governed or controlled by them. It did not follow, as a logical or legal conclusion, that the dam was erected according to the order of the respondent, because he gave such orders. The fact was still to be proved by him, and neither his previous directions nor subsequent statements were competent to establish it. Lund v. Tyngsborough, 9 Cush. 36.
3. It is equally clear, that the evidence of the conversation between Roberts and the respondent, after the former had assisted in placing a mark to designate the height of the old dam, was incompetent. It was a narrative of a past transaction by the Witness, and a naked declaration by the respondent; both were inadmissible and irrelevant to the issue.
4. It seems to us, that the contract of lease, executed by the complainants, was admissible. It being conceded that the inquiry concerning the extent of the water power created by the dam across the brook near its source was competent, it follows that the stipulations and agreements concerning it and the quantity of water which the complainants thereby agreed to furnish, were in the nature of declarations .by them on that, subject, which it was competent for the respondent to prove.
5. The only remaining exception insisted on by the complainants is founded on the instruction given to the jury, that it was necessary, in order to entitle the complainants to a verdict, for them to prove that some portion of a parcel of their land, lying in the county of Middlesex, was overflowed, or in some way injured by the water raised by the respondent’s dam. This was clearly erroneous. There was no plea to the jurisdiction of the court, on the ground that the land alleged to be injured was not in the county of Middlesex. Rev. Sts. c. 116, § 4. This fact was not in contention between the parties. The only matter in issue was that pleaded in bar of the complaint, namely, a right on the part of the respondent to keep up his dam without payment of damages. Nor would it have been competent for the respondent to plead in bar, or prove at the trial before th.e court, that the land described in the petition was not injured by the dam. This is expressly prohibited by Rev. Sts. c. 116, § 8. The *586question whether the land described in the complaint is injured by the dam, amounts to the general issue. It cannot be tried at the bar of the court; but must, from its nature, be determined only by the sheriff’s jury, who, by viewing the premises, the situation of the land, the height of the dam the flow of the water, and all the various circumstances bearing on the question, can alone satisfactorily inquire into and settle it. There can be no danger or hardship to the mill-owner in this mode of trying the question. The judgment on matters properly pleaded in bar is only interlocutory. The main question is still to be determined ; and if the complainant fails to show any injury to his land, and to obtain damages therefor before the sheriff’s jury, then final judgment must be rendered for the respondent. Rev. Sts. c. 116, § 17. Charles v. Porter, 10 Met. 37. The instruction on this point was in direct conflict with the express provision of the statute.
It was further suggested that the instructions of the court were erroneous as to the burden of proof, but, apart from the instruction on that point in connection with the ruling just considered, we do not see that they are open to objection.
Exceptions sustained.