It appears from the pleadings and from the facts stated in the bill of exceptions, that Garden Brook is a natural stream running by and over the land of the defendant, and thence through Main Street in the city of Springfield. The plaintiffs claim to be owners in fee of all the land included within the limits of said street, and that they are entitled to have the water flow in said stream at all times without obstruction, in order that they may use it, as they have a right to do. for sewerage, for extinguishing fires, and for all other purposes essential to the health and safety of the city. The defendant is the owner and occupant of a mill standing upon his said land; and he admits that during the whole period in which *496the obstruction complained of is alleged to have occurred, he has, in operating his mill and the works contained in it, used the water of said stream by means of a dam, which for that purpose he has erected and maintained across it. The plaintiffs in their declaration allege that this dam was and is “ of a larger magnitude than is adapted to the size and capacity of the stream, and to the quantity of water usually flowing therein.” And. this is the particular grievance of which they complain, and which they set forth as their cause of action against the defendant.
The action can be maintained only by the proof of this material allegation; for the defendant had a right to use the water in. a reasonable and lawful manner to work and operate his mill, whatever might be the effect of such use in reference to any easement to which proprietors of land situate at any point below it might otherwise be entitled. Each proprietor of land through which a natural watercouse flows has a right as owner of such land, and as inseparably connected with and incident to it, to the natural flow of the stream for any hydraulic purpose to which he may think fit to apply it; and it is a necessary consequence from this principle that such proprietor cannot be held responsible for any injurious consequences which result to others, if the water is used in a reasonable manner, and the quantity used is limited by, and does not exceed, what is reasonably and necessarily required for the operation and propulsion of works of such character and magnitude as are adapted and appropriate to the size and capacity of the stream and the quantity of water usually flowing therein. Thurber v. Martin, 2 Gray, 394. Gould v. Boston Duck Co. 13 Gray, 442. Tourtellot v. Phelps, 4 Gray, 376.
The jury having found, under instructions in matter of law which are admitted to have been correct and unobjectionable, that the plaintiffs have failed to establish the material allegations in their declaration relative to the dam erected and maintained by the defendant across the stream, and having also found that the said dam is only of such magnitude as is adapted to the size and capacity of the stream and to the quantity of water *497usually flowing therein, and that the manner in which he used the water was not an unusual or unreasonable use of it, according to the general custom of the country in cases of dams upon similar streams, it is obvious that the plaintiffs were not entitled to recover any damages, and therefore that the verdict was propel ly rendered for the defendant.
It is objected that the court erred in ruling that the plaintiffs had not upon the evidence shown that they had acquired any prescriptive right to the water in the brook, and in directing the jury for that reason to return a verdict for the defendants. It would have been more regular to reserve these directions, which were predicated wholly upon questions of law, and to submit to the jury the questions of fact in issue, which were specially submitted to them with instructions that if they found the first in the affirmative and the second in the negative, they should in that case render a verdict for the defendant. But as we do not perceive that the plaintiffs were at all prejudiced or subjected to any disadvantage by the course pursued, such irregularity affords no sufficient cause for disturbing the verdict, which was rendered exclusively upon particular questions of fact which were wholly independent of and distinct from the questions of law. And as the finding of the jury upon those particular questions makes it certain that the plaintiffs could in no event maintain their action, it becomes unnecessary to consider whether the ruling of the court in relation to the plaintiffs’ alleged title was correct; for whether they owned the soil, or had acquired any prescriptive right to the use of the water, or were mere riparian proprietors, it is obvious that judgment must necessarily upon the finding of the jury upon those questions of fact be rendered for the defendant. Exceptions overruled.
Chapman, J. did not sit in this case.