
    George Hodges versus Ephraim Raymond and Others.
    In trespass quart clausum fregit, the defendants pleaded not guilty as to the force and arms, and a special justification as to the residue of the trespass : the jury returned a general verdict of not guilty; upon which judgment was entered. The owner of an ancient mill may lawfully enter the close of another, and remove a dam erected therein, by which the water of the stream below the mill is made to flow back and prevent the mill from grinding.
    Trespass for breaking and entering the plaintiff's close in Norton, in this county, and breaking down, tearing away, subverting, and destroying, the plaintiff’s mill-dam, belonging to his fulling mill there, and tearing up and subverting the soil.
    
      The defendants, as to the force and arms, &c., pleaded the general issue of not guilty,-which was joined.
    * And as to the rest of the trespass charged,- they pleaded in bar, that the defendant Raymond and one Josiah Dean, long before, at the time when, <fcc., and ever since, were owners of a certain ancient mill-dam across the same stream whereon the plaintiff’s dam was situated, and above the same, with certain mills, factories, &c., on their said dam standing and being, and in the sole occupation of the said Raymond; that the said dam of the said Raymond and Dean being an ancient dam, he, the said Raymond, had a right at the time, when, &c., and at all other times, to build, rebuild, alter, and repair, the said dam and mills, and to work the said mills, and to have the water pass off in its natural course, without hinderance or molestation from any person damming or stopping the water below his said mills ; and because the plaintiff, at the time when, &c., by means of his said dam, then lately erected, did stop the water from running off, and cause the same to flow back upon the wheels of the mills of the said Raymond and Dean, to the said Raymond's great damage, hinderance, and molestation, whereby he was prevented from building, &c., he, the said Raymond, at the said time when, &c., in his own right, and the other defendants as his servants, in order to" remove the hinderance and dam of the plaintiff so obstructing the water, &c., did break and enter the said close, and did pull up and .remove part of the said dam, whereby the water was permitted to run off, as they might lawfully do, and in so doing necessarily subverted a little of the plaintiff’s soil, &c., doing as little damage as possible on this occasion, &c.
    To this plea the plaintiff replied that the defendants committed the said trespass of their own wrong, and without the cause alleged in their plea, and tendered an issue to the country, which was joined by the defendants.
    A trial was had before Parlcer, J., at an adjourned session of the Court, holden here in May, 1811.
    The judge reports that, upon the supposition that the general issue was upon trial in the cause, the jury were directed by him, if they found the facts to be proved, which are *set forth in the plea in bar, they might return a general verdict of not guilty for the defendants ; which they accordingly did.
    But the question was reserved, whether the facts contained in the plea in bar amounted to a legal defence against the plaintiff’s action of trespass ; and if they did not, or if the judge who tried the cause could not alter the verdict, so as to apply it to the issue joined, then a new trial was to be granted ; the plaintiff also reserving the right to move in arrest of judgment for the insufficiency of the plea in bar.
    At the last October term, all objections to the form of the verdict being waived, Sproat, of counsel for the defendants, argued that this was a private nuisance to Raymond, the occupant of the upper mill, which he had good right to abate, and for that purpose to go upon the plaintiff’s land. The remedy for this nuisance by action would have exposed Raymond to most inconvenient delay, as his operations were of great importance to him.
    
      Tillinghast and Baylies, for the plaintiff,
    contended that this was not such a nuisance as the defendants had a right to abate. The plaintiff had a right to erect a dam on his own land for the use of his mills; and a natural effect of this would be, that, on occasions when the river should rise from great falls of rain, the water would flow back to the defendant’s mill. But this would not constitute a nuisance, nor justify the defendants in thus violently abating it. If the defendants are justified, parties will hereafter resort to force for redress of supposed injuries, instead of applying to the law ; and private violence will take place of public justice.
    The cause stood over to this term for advisement, when the Court conferred together, and not being prepared to give judgment, the action was further continued nisi; and at the following term in Middlesex, the Chief Justice said that two questions had engaged the attention of the Court — the first, whether judgment could be entered upon the verdict * found by the jury in this case, supposing the facts contained in the plea a sufficient defence against the action,—the case, of Hawks vs. Crofton 
       is in point. There, to an action of trespass for an assault and battery, the defendant pleaded not guilty as to the force and arms, and issue was joined thereon ; as to the special damages, he pleaded son assault demesne, to which the plaintiff replied de injuria sua proprio absque tali causa, on which issue was also joined. There was a general verdict of “ guilty of the trespass within written The Court held that the verdict was sufficient to support the judg ment rendered on it. Mr. Justice Foster observed that the “jury could not have found thus, unless the defendant had failed in proving his justification.” Upon the same principle, and with equal reason, it may be said, in the case at bar, that the jury could not have found thus, if the defendants had failed in proving their justification.
    Whether that justification is sufficient, is the second point. It is well settled that if A interrupt or divert water from flowing to the mill of another by its ancient course, the owner of the mill may lawfully enter upon A’s land, and remove the interruption. Now, there can be no difference whether the damage to the owner of a mill arise from the water above being diverted from his mill, or from the water below being stopped so as to flow back, and thereby prevent the mill from grinding. The mischief is the same, and the same remedy ought to be furnished. The defendant’s justification is then sufficient. 
    
    
      
       2 Burr 698.
    
    
      
       5 Co. 101, Penruddock's case. — 9 Co. 53, Batten's case. — Salk. 458, Lodie vs. Arnold.— Yelv. 141, Horne vs. Widlake. — Cro. Car. 184, James vs. Hayward. — Hawk. P. C. B. 1, c. 75, §12.-2 Roll. Abr. 144. — Jones, 221.
    
   Per Curiam.

Let judgment be entered on the verdict.  