
    Solomon Curtis and Others versus Ephraim Jackson.
    Where there are mills on both sides of a water-course, and the mill-owner on one side has the exclusive right to use the whole of the water when there is not enough for the 1 'ills on both sides, he has not a right to erect a permanent dam to turn the water to his mill, but must rely on his legal remedy, if his right be infringed by the mill-owners on the other side.
    Jurors are to understand words spoken and given in evidence, according to the apparent intent of the speaker.
    When evidence given at a trial is objected to and rejected, if the parties after-wards comment upon it to the jury, as if it had been admitted, the objection will be presumed to have been waived.
    This was an action of the case, brought by the plaintiffs, as owners of a mill in Newton, against the defendant, for obstructing and diverting the water in its course to said mill. The defendant pleaded the general issue, which was tried at the sittings here after the last October term, before Jackson, J.
    On the trial, it appeared, that the water of Charles river, between Newton and Needham, at the place where the plaintiffs’ mill is situ ated, is divided by a small island or rock, and that part of the water passes on the Needham side to a certain mill of the defendant ; and the other part passes on the Newton side to the mill of the plaintiffs, and to certain other mills on that side of the river, there being but one dam for all the said mills. There was a sand-bank on the Needham side above the defendant’s mill ; and in August,- 1813, the defendant, having previously dug out a channel, between that bank and the Needham shore, down to his mill, placed a dam or pile of stones from the upper * end of the said bank to the Newton shore, so as to turn nearly all the water through the said new channel to his own mill. The water was at that time very low, and the plaintiffs’ and other mills on the Newton side, which were going when the defendant made that dam, were stopped for want of water, as soon as it was completed. This was the injury for which the action was brought.
    The defendant then produced evidence to prove, that, from the earliest time to which the memory of any of the witnesses extended, namely, from the year 1763, until about the year 1790, the owners of his mill had always exercised and enjoyed the right of using the water exclusively, when there was not enough for the mills on both sides ; and that this was effected by making his flume lower than any flume on the Newton side, so as to draw offfall the water when it was low ; or by requiring those on the Newton side to stop theii mi Is in such a case, so as to leave the whole for his mill.
    The plaintiffs produced no evidence to disprove this ancient course and usage among said mill-owners ; and it did not appear that tne defendant had, since about the year 1790, ever required the mill-owners on the Newton side to stop their mills for the purpose above mentioned. But the plaintiffs offered evidence to prove, that the defendant’s flume, in 1800, which then appeared very old, was not so low by eight inches as the natural bed of the river on the Newton 
      side ; and that, in that year, the defendant took up that flume, and laid a new one, about twenty-six or twenty-seven inches lower ; -in answer to which, it was testified, that the said ancient flume was laid on a sill or stone wall, so as to make it higher than the bed of the river on the Needham side.
    It appeared, that, in 1794, one Ware, who then owned a mill on the Newton side, had lowered the gate or flume leading to his mill; whereupon, some of the other mill-owners on that side, including the plaintiffs, and also the defendant, who was then a part owner of one of those mills, * deepened the channels or flumes leading to their mills, and continued to dig and clear out said channels, until the defendant, apprehending some damage to his mill in Needham, put a stop to the work. All the mills then continued without any further change until the year 1800, when the defendant lowered his flume as above mentioned.
    In order to take the whole advantage of that measure, the defendant found it necessary afterwards to dig and clear out the channel above mentioned between the said bank and the Needham side of the river ; and he proceeded to do so until his mill drew all the water from the Newton side. The plaintiffs, and the other owners of mills on the Newton side, then lowered their flumes ; and proceeded to deepen the channel leading to them ; and both parties continued this course, until about the year 1805.
    It was not precisely ascertained which party, or whether either party, finally obtained any advantage of the other by thus digging ; but the weight of evidence appeared to be, that their relative situation remained the same, although all of them were injured by it. One witness testified, that the gates of some of the Newton mills were finally lowered as much as three feet; and that, in the state of the river in August, 1813, as much water would flow on the Newton side, after the defendant placed the obstruction there, as would have flowed there if all the mills had remained in their ancient state. On the other side, a witness testified, that the defendant finally lowered his gates about three feet, and he and another witness testified, that, after 1805, the two parties remained in the same relative situation.
    The defendant then produced evidence to prove, that, at or near the place where he placed the said stones, there were the remains of an ancient bank or ridge ; but it appeared from the same evidence that these were the remains of an ancient dam of stones and w'ood, which must have been removed before the dam and mills could be used where they now stand , and that nearly forty years ago that dam * had been removed, and the remains of it were then covered by the water in its common state ; and that their existence was not known to a witness, who then lived there, until all the water was drawn off on a certain occasion. The stones placed there by the defendant were so high, that one might walk on them across the river to the said bank in August, 1813. The defendant also produced evidence to prove, that all the stones, which he so placed in the river, were such as the plaintiffs and other mill-owners on the Newton side had previously taken out of the river, chiefly in 1804 and 1805. But it appeared that those stones were so taken out from different parts of the river, and bad never been previously piled together in the form of a dam in any part. And it was also testified on the part of the plaintiffs, that the defendant put. in other stones, besides those which had been so taken out.
    Upon this evidence, the judge instructed the jury, that, as the defendant admitted that he placed the stones in the river, in the manner alleged in the declaration, they must find a verdict for the plaintiffs ; unless the defendant, fully proved that he was justified in that act;—that the evidence produced by the defendant of the ancient title to his mill, and of his right to draw all the water when low, had no tendency to prove such justification, although it might have some influence in estimating the plaintiffs’ damages ; and that, if the defendant had such right as he alleged, and if the plaintiffs had injured him in that respect, he must procure his remedy against them at law, and could not, on that account, justify an injury done by him to them ; — that the existence of an ancient dam at or near the place in question, as it had been removed before the memory of any witness produced on the trial, would not justify the defendant in raising a new dam in that place, or in making any further obstructions there ; — that, even if the plaintiffs had, in 1805, or afterwards, got their gates and flume lower in relation to the defendant’s than they ought to ; yet this would furnish no justification to him, unless the jury were * satisfied, that, if all the gates had been kept in their just situation relative to each other, the plaintiffs’ mill would have been deprived of the water as much without as with the said obstruction, placed there by the defendant;—and, finally, that, in finding a verdict for the defendant, they would, in effect, declare, that he had a right to keep those stones in the river where he had placed them ; and, therefore, they must not find such a verdict, unless they were satisfied that the keeping of those stones there would not, at any time of the year, injure the plaintiffs, or prevent the free use of their mills, according to their ancient rights.
    The jury found a verdict for the defendant; and the plaintiffs moved for a new trial, on the ground that the verdict was, as they alleged, against the foregoing directions of the judge, and against the weight of evidence.
    In the course of the trial it appeared, that in 1767, upon some controversy arising between the mill-owners on the two sides of the river, an award was made, by which it appeared, that their rights in the water were to be precisely equal on both sides. It was then testified by a witness, that, soon afterwards, the mills on the Need-ham side had a preference in fact, and that the mills on the Newton side were always stopped on the requirement of the other proprietors, when there was not water enough for all of them. The witness also stated, that this change was produced by a contract made in 1768, between those respective proprietors, by which the proprietors on .the Newton side, in consideration of £200, yielded that right to the proprietors on the Needham side.
    After this testimony as to the said supposed contract was delivered by the witness, the counsel for the plaintiffs objected, that such evidence was inadmissible ; and the judge was of that opinion, and accordingly so decided. But, in the course of the trial afterwards, the counsel on both sides adverted to this evidence, and commented upon .it to the jury ; and, as it appeared to the judge to have very little * bearing upon the merits of the cause, he supposed the objection' to have been waived.
    It also appeared in the course of the trial, that, while both parties were engaged in digging in the river, in 1804 and 1805, the defendant repeatedly declared to the proprietors on the Newton side, that they might dig as low as they could, and that he would do the same on his side ; and also, that, afterwards, when the defendant met with some unexpected difficulty on his side, he announced to the.other party, that he would proceed no farther in this course, but would have his rights settled and decided at law. And the plaintiffs insisted on this as evidence of a license, by the defendant to them, to dig as low as they had done, and of an agreement between the parties, that each might retain all the advantage that they should acquire in this manner.
    But, as the defendant’s language and conduct in this respect was represented somewhat differently by different witnesses, leaving it uncertain, in the apprehension of the judge, whether there was such an understanding and agreement between the parties, or whether it was only a threat by the defendant, that, if the other party chose to proceed in that course, he should dig faster and deeper than they could ; — the judge left all that evidence to the jury, with a direction, that, if they were satisfied that there was such an agreement or understanding, they should consider all the gates and flumes on both sides of the river as being justly placed, for all the purposes of this trial, in the situation in which they remained after the parties had so ceased to dig ; but that, if they were not satisfied of that fact, this evidence should have no influence on their verdict. The plaintiffs moved for a new trial, also, on account of this direction to the jury.
    
      Bigelow, for the plaintiffs.
    
      Ward and Hoar, for the defendant.
   Wilde, J.

The ground laid before us, to support the mo tion for a new trial, supposes sundry mistakes in both * judge and jury ; in relation to which I will now briefly state the opinion of the Court.

1. The first exception to the opinion of the judge, that parol evidence was allowed to go to the jury, to prove the sale of an interest in real estate, is founded on a mistake of the plaintiffs’ counsel. The evidence was rejected, as appears by the report; but, as the counsel on both sides adverted to and commented upon this evidence in their arguments to the jury, the judge, with good reason, supposed the objection to have been waived. The counsel for the plaintiffs mignt have insisted on their objection ; but, not having done it at the trial, they have now no just cause for complaint.

2. The second exception is, that the evidence respecting a license was submitted to the jury with instructions from, the judge allowing them a latitude, in their construction of the testimony, not warranted by law.

There can be nothing in this exception, unless a jury is bound to give a literal construction to words proved against a party, whatever may be their opinion as to his meaning. But it would be strange, indeed, if words, evidently spoken ironically or jocosely, must receive a literal construction in courts of law. The true principle of construction is, that words must be understood according to the obvious intention of the speaker ; and this intention is to be collected, not only from the words themselves, but from the manner in which they may be spoken, and the circumstances to which they may relate. In this light, we think the evidence was fairly submitted to the consideration of the jury.

3. In stating the opinion of the Court upon the remaining objec tion to the verdict, I shall not advert to all the facts in the case, some of which are of minor importance.

The general objection is, that the verdict is clearly against the weight of the evidence ; and, if this is established, justice doubtless requires the interposition of the Court.

* The injury complained of by the plaintiffs is, that the defendant erected an obstruction, or weir, in the stream, above the plaintiffs’ mill, whereby the water was diverted from its natural channel; by means of which the plaintiffs have been materially impeded in working their mill.

The erection of the weir was clearly proved, and the defendant attempted to justify it, first, by offering parol proof of a grant of the right to divert the water ; which, being rejected by the judge, as has been before noticed, he contended, that a grant should be presumed from the evidence of a claim and user of such a privilege for more than twenty years. But it may be doubted, if such claim and user for twenty years previous to 1790 be sufficient to support the presumption of a grant, whether the non-claim and non-user since that time be not sufficient to rebut such a presumption. But, however this may be, it must be remembered, that the right claimed by the defendant previous to the year 1790 did not extend to the unlimited control of the water, but only to the exclusive use of it when there was not sufficient to work the mills on both sides of the stream; which cannot be considered as a sufficient justification for erecting a permanent obstruction in the stream, which may be injurious to the plaintiffs beyond the extent of the ancient usage and claim. The admission of such right, therefore, can only apply to the question of damages.

But the counsel for the defendant contend, that the obstruction complained of bad only the effect of restoring the relative state of the water, as it may'respect its operating power on the mills, which had been wrongfully disturbed by the plaintiffs, in digging and altering the bed of the river. These operations took place in 1805, and before ; and it is certified, that the weight of the evidence appeared to be, that the relative state of things then remained the same as before the digging and clearing out of the channel. If so, then clearly the erection of the weir *was an injury to the plaintiffs, and the verdict is against the weight of the evidence.

There was apparently some conflicting testimony ; but not so, perhaps, by any necessary construction. One witness testified1, that, after the erection of the obstruction, as much water would flow to the plaintiffs’ mill, as the river was in August, 1813, as would have flowed there had all the mills remained in their ancient state. This may be true, and not in opposition to the other evidence ; for, as the stream was low, perhaps no water would then have flowed to the plaintiffs’ mill, had no alteration been made in the bed of the river. But, whatever might have been the intention of the witness in confining his testimony, as to the relative state and course of the water, to a particular time, it is sufficient, to support the present motion, that the weight of the evidence, and the opinion of the judge who presided in the trial, is in opposition to the verdict; which cannot be sustained without disregarding established rules, and the apparent justice of the case.

The verdict must, therefore, be set aside, arid a

New trial granted.  