
    Matthew Vandusen versus Prentice Comstock.
    A complaint of the owner or occupant of land, flowed by the mill of another, [pursuant to the statute of 1795, c. 74, §3,] praying for an increase of the yearly damages, beyond what had been fixed by an appraisement made on a former complaint, must set forth such former complaint, with the proceedings had thereon.
    This was a complaint to the Court of Common Pleas for this county, afterwards brought into this Court by appeal, wherein the said Vandusen states that he is the owner and possessor of certain lots of land in Great Barrington, situated on either side of Muddy Brook, so called, and that he ought to enjoy the same, flee from all encumbrances; and that the respondent, Comstock, is the owner and occupant of a certain saw-mill situate on said brook below said land, and, in order to work the said mill, has dammed the said brook, and thrown back the water thereof, so as thereby to flow, drown, and destroy, forty acres of the complainant’s land; and many other injuries, &c.; wherefore he prays for a jury, &c., as the law directs.
    To this complaint the respondent pleaded, 1 st. That the flowing complained of causes no hurt or damage whatever to the land described. The replication to this plea * traverses the allegation, avers the yearly damage to be one hundred dollars, and concludes to the country; on this issue is joined.
    2d. That one Isaac Vandusen, then being the owner of the same land, commenced a process against the said Prentice and one Aaron Graham, then the owners or occupiers of the same mill, for damages occasioned by the flowing of the said land, at the Common Pleas for this county, in October, 1802; praying a warrant to the sheriff to summon and empanel a jury, to ascertain what damages the said Isaac sustained by reason of said overflowing, and how far the same was necessary; whereupon such proceedings were had, that the jury appraised the said damages at two dollars by the year, and further found that the public convenience, and the circumstances of the case, did not justify the flowing from the 20th of April to the 1st of November ; that, from the latter to the former of those days, the said Comstock and Graham might flow said land; provided they should lower their waste gate three feet; which verdict was accepted by the said court at August term, 1803; and judgment was rendered thereon, and is now in full force. The plea then avers that the respondent did lower his said gate conformably to said verdict; has annually paid or tendered the said sum of two dollars, and in all things has conformed to said judgment; wherefore, &c.
    To this plea the complainant demurs generally, and the respondent joins in demurrer.
    
      Hulbert for the complainant.
    
      Dewey and Whiting for the respondent.
   Sedgwick, J.,

delivered the opinion of the Court. This suit is brought on the statute of 1795, c. 74, for the support and regulation of mills ; and the complainant grounds his complaint on the second section of the statute, as if there had been no previous process on that section, relative to the subject matter of the complaint.

The question, arising upon the demurrer, is, whether the complainant has not mistaken his remedy ; whether, in * this case, he ought not to have grounded his complaint on the former judgment, and sought expressly, what is undoubtedly the object of his suit, an increase of damages. And this we are all clearly of opinion ought to have been the case.

In all actions, the allegations of the plaintiff should be so framed, that the proof may conform to them. Now, in this case, the object of the suit is an increase of the damages assessed in the former suit; and the proceedings in the former prosecution are, therefore, material evidence in support of the subsequent action. But these proceedings are not alleged; and, therefore, could not, on a trial, be given in evidence.

It appears to have been the idea of the attorney who instituted this suit, that the provision in the third section of the statute, that a suit commenced, the object of which was an increase or decrease of damages previously assessed, should be “ by the form of process before prescribed,” rendered it necessary, when an increase of damages was sought, that the complaint should be in the same form as was the original complaint. But in this case the complaint forms no part of the process.

The judgment of the Court is, that the plea in bar is sufficient.  