
    Jarnigan vs. Mairs and Winfield.
    Jarnigan, whose lands were overflowed by a mill which belonged to-Brown’s heirs, sued Johnson, the administrator of Brown, for the continuance of á nuisance, and recovered damages against him*. Held, that the record of recovery was hot evidence in a súbséquent suit against the vendee of Brown’s heirs for any purpose except to establish the fact of its own existence ánd the legal consequences resulting therefrom;
    Where the charge of the court against the defendant is erroneous, but the record does not show a state of facts upon which such error could operate, it is not á cause óf reversal.
    Where the court charged the jury -that a record was evidence for no purpose, whereas it was evidence to establish the fact of its own existence and to show that complainant had not so acquiesced in an overflow of his premises so as to create a presumptive right to the easement in question, or to create a presumption of a grant or license to overflow: Held; that tli'é rfeüord not shovw ing a state of facts upon which this defence against prescription could arise, the error in the charge of the court was not therefore^, just cause of reversal:
    Jarnigan built a mill-dam overflowing the lands óf a stranger; he then sold to Owen, and subsequently acquired tiflé tó the lands overflowed: Held, that a deed with warranty would not pass the right to overflow th'e Iknds as against a stranger, but that Járnigan, having subsequently acquired title, the right did pass as against him. It however lays upon the defendant to show in the record that the deed was without warranty, and that it therefore did not pass as against him.
    This is an action of trespass on the case from Fayetté county. The plaintiff, David Jarnigan, alleges in his declaration that-he was lawfully possessed of a saw and grist-mill on the north fork of Wolf river, in Fayette county, and that the defendants had erected a dam across the same stream below his mill, whereby its back-flowage greatly impeded and injur'éd 'the operation of the plaintiff's mill.
    The defendants pléaded not guilty, upon which plea issue was taken.
    Theré is much testimony in the record of a most contradictory nature. The record does not purport to contain all the testimony brought forward by the parties in the court below. The plaintiff shows that his mill had been frequently much impeded in its operations by the back-flowage of the defendants’ dam, and its utility and value was much impaired thereby. The defendants then show that the plaintiff and one Owen were joint owners of the ten acre tract of land on which the mill of defendants was situated; that plaintiff and Owen had built a mill on the said ten acre tract within a short distance of the site where the present mill stood; that Owen sold his interest in the land and mill to his partner, and that the defendants derived their title and possession from Owen by regular deeds of conveyance. It does not appear whether Jarnigan sold and conveyed to Owen by deed with warranty or not. The mill-dam originally erected by Jar-nigan and Owen overflowed the lands above to a considerable extent. The lands adjoining above were vacant at the time of the erection of this dam. At a subsequenf^briod the land adjoining above was entered, and Jarnigan became the purchaser and erected the dam and the saw and gristmill upon it, the operation of which, the plaintiff alleges, was impeded by the dam of defendants. A fresh washed away the dam originally erected by Jarnigan and Owen, and one of the intermediate owners rebuilt the dam some forty or fifty paces below the site of the old dam.
    In reference to the relative height of the old and new dams there was much contrariety of testimony; some witnesses stating that the dam erected by Jarnigan and Owen in 1825 was not so high as the dam subsequently erected, and others stating that it was about the same height.
    The plaintiff introduced and read to the jury a copy of a record of recovery of damages against one Daniel-Johnson, by the plaintiff, for continuing and' keeping up. the dam in the defendants’ possession. The mill then belonged to the heirs of Robert Brown, deceased, and Johnson was in possession as the administrator of Brown. The plaintiff also proved that the height of the water in the pond and the back-flowage during Johnson’s possession of it were about the same as that created by the defendants’ present dam.
    V. D. Barry, judge, charged the jury that the record was not evidence for hny purpose unless it appeared that Johnson had some interest in the land at the time of the suit and recovery against him, and also that the defendants had a right to maintain their dam as high as the dam of the old mill built by the plaintiff was at the time when he sold to the person under whom the defendants claim.
    The jury rendered a verdict for the defendants. The plaintiff moved the court for a new trial upon the grounds that the verdict was contrary to the evidence, that the charge of the court was erroneous, and also upon affidavits exhibited showing that the defendants, during the pendency of the trial, purchased wines and other liquors for the jury, which the jury drank after they had returned their verdict.
    This motion was overruled, and the plaintiff appeals ip error to this court.
    P. P. Stanton, i'or plaintiff in error.
    Í. The record of recovery against Johnson ought to have been admitted as evidence to be weighed by the jury, because the defendants are privies in law and estate to that judgment. 1 Starkie’s Ev. 219: Saund. PI. and Ev. 612: 6 Cond. Rep. 623-4-5: Strutt vs. Barrington, 5 Esp. 58, quoted in 9 Petersdorf, 130: 13 Johns'. Rep. 580: Calhoun's lessee vs. Dunning, 4 Dali. Rep. 120. The judgment against Johnson operated somewhat iq the nature of an adjudication in rent. It determined the rights of the plaintiff as regarded the obstruction in the stream, establishing that thp obstruction is a nuisance. In this view the record is admissible evidence between parties and privies, (1 Stark. Ev. 212,213: Saund. PI. and Ev. 612, 613: 2 Stark. 705-6: Angel, 173,) and perhaps even against strangers, as in the case of judgments respecting customs,, tolls, public commons, rights of way, &c. as quoted in the authorities last cited. A judgment is always evidence to prove the simple fact of that judgment having been rendered, as well as all the legal consequences from it. The record ought also to havp bepn admitted to prevent the defendants from acquiring a prescriptive right to overflow the upper mill by analogy to the seven years statute of limitations. This is insisted upon the authorities already cited, showing that a judgment is always evidence to prove the fact of such judgment having been rendered, with all its legal consequences.
    2. The court erred in charging the jury that the defendants were entitled to keep up their old dam as high as it was when - the plaintiff sold his interest to his partner, Owen. Originally both Owen and the, plaintiff had trespassed on the land above by building their dam and throwing back the yrater; both were equally guilty: there could be no such thing as dividing the guilt or responsibility. Both were cognizant of this fact, and there could be no deception between them. Therefore, when the plaintiff sold out to Owen, the latter became alone Responsible, for all subsequent injury, and as the defendants claim title from Owen they must look to his title to sep what they purchased. The plaintiff sold his interest soon after the mill was built, the right of' overflow not having been perfected -by lapse of time into a prescriptive right. A right permanently to overflow lands must be conferred by an instrument of writing. Meigs’ Rep. 138. There was no instrument of- writing here unless it be the deed of plaintiff to Owen conveying half of ten acres of land with thp ajpppr-tenances, which, it is contended, operated by way of estop-pel. First: This was only a. deed for ten acres of land with ■¿he appurtenances, &c. Will the word “appurtenances” carry the right to overflow a stranger’s land? Angel on Water Courses, 43-4-5. Second: The bill of exceptions does n<?t show that there was any warranty of title by the plaintiff. Whep the grantor has no right at the time, a deed passes nothing subsequently acquired unless there is a clause of warranty, and then it operates by way of estoppel. 4 Kent5i 261: Jackson vs. Wright, 14 Johnson’s Rep. 193: Dart ys. Dart, 7 Conn. Rep. 250: Jackson vs. Winston, 9 Cowen, 1: Pelletreau vs. Jackson, 11 Wend. 117: 2 Thomas’ Cocke, 365-6. Third: If this defence, is available a,t all it should have been pleaded. Saund. PI. and Ev. 38: 1. Stark. Ev. 295-6.
    What did Jarnigan sell when he disposed of the lower ■mill? Surely nothing but ten acres of land. True, that land bad a mill upon it when he sold it, and it is to be presumed the dam was attached to the mill and caused an overflow upon the lands above. But he sold to his partner, who knew very well that there was no license for this, and that they were liable for damages to the upper proprietors. There was no Reception here. All was fair and perfectly understood between the parties. Besides, the dam had been up but a short time; no prescriptive right had been acquired. Up to this time the overflow had been temporary; it was a bare trespass. Did the plaintiff undertake to sell this right of trespass, this privilege of doing injury to another? Where is the evidence that he did? It does not appear upon the face of the papers. Can it be implied in the term “appurtenances?” See 2 Black. N. 163. Perhaps if this had grown into a prescriptive right, or if there had been a grant or license, it would have been appurtenant to the land; but inasmuch as it was, at the. time of sale,, a mere unauthorised trespass or nuisance, it could not be an appurtenance. It would be absurd to speak of a nuisance being an appurtenance to land. The case would have been different if the plaintiff at the, time of sale had owned the lands above. It would not then have been a nuisance and trespass, and of course might have been appurtenant, for he would have had the power to assume the privilege of overflowing it or to grant it to others.
    
      H. 6?. Smith argued the case for defendants,
    but left no. brief of which the reporter could avail himself.
   Reese, J.

delivered the opinion of the court.

This is an action on the case for a nuisance in overflowing the land of plaintiff by means of the back-water of defendants’ mill-dam. Some years since the plaintiff, being owner of ten acres of ground, built thereon a mill in partnership and conjunction with one Owen. Plaintiff did not then own the land above the mill; it belonged to a stranger; but the dam constructed by him and Owen overflowed the land above, and such overflow was necessary to the useful and profitable operation of said mill. After the construction of the mill and dam, and the use of it for some time, the plaintiff sold and by deed conveyed the ten acres of land, with the mill and appurtenances, to said Owen, who subsequently sold and conveyed to one Brown. Plaintiff then purchased the land above the mill, a portion of which was thus overflowed with water. Brown died; his heirs were minors; and one Johnson, who, wa.s his administrator,, took possession of the mill. During this time the plaintiff- brought against said -Johnson an action for a nuisance, on the ground of the overflow of his lands by means of the said mill, and recovered a verdict and judgment. Brown’s heirs subsequently sold and conveyed the mill to the defendants, or some of them. On the trial of the cause before the jury the deeds of conveyance for the land and mill were produced and read, but are not copied or set out in the bill of exceptions. The record of the former suit against Johnson was produced and read. The bill of exceptions sets forth much testimony on both sides? and of a conflicting character, touching the value and extent of the supposed nuisance, the conduct of the parties, and the circumstances of the case; but it does not purport to set out all the testimony in the case, nor does it state that all is set out. With regard to the charge of the court, the bill of exceptions states that “it is admitted to have been correct and full except in the two following points: the court charged the jury that the aforesaid record of the recovery against Johnson was not evidence for any purpose unless it appeared that he had some interest in the land at the time of the suit; and the court also charged the jury that the defendants had a right to maintain their dam as high as the dam of the old mill built by the plaintiff was at the time when he sold to the person under whom the defendants claim.”

A verdict was rendered for the defendants, which the court refused, on the motion of the plaintiff, to set aside. The plaintiff has prosecuted his writ of error to reverse the judgment, because a new trial was not granted for the supposed misdirection of the court, and on the ground of alleged misconduct of the jury set forth in certain affidavits annexed to the bill of exceptions.

1. Is there error in what is said by the court on the subject of the record of the suit against Johnson? It is argued that there is, because it is said that although there appears to have been no interest on the part of Johnson in the premises, nor any privity hi estate, or other privity between him and the defendants, so that the record could be evidence against them to prove or establish the nuisance as a matter of fact, still that every record is competent to prove the fact of its own existence, and to establish ihe legal consequence resulting from such existence; and that one legal consequence re- - suiting from the existence of the record referred to is to prevent the defendants from insisting upon a prescriptive right to the easement in question, arising from lapse of time and the undisturbed enjoyment of the easement or upon a presumption of grant or license. To this it is replied that the record does not show that the land in question was granted; that to give operation to the statute of limitations it is necessary that the land should he granted, and that the prescriptions and'presumptions in analogy 'to the statute of limitations must arise and be founded upon the same fact, namely, that the land is granted land. And it might further be replied that the record does not in other respects show a state of facts upon which this defence from prescription or presumptions would arise.'1 And the bill of exceptions states that the charge was full and satisfactory except in the particulars above recited; the latter of which it could not have been if the defendants had got any such advantage on the subject of presumption and prescription, as affected by the Johnson record, as is now intimated they might have done.

2. Is there any error in that part of the charge of the court which states the right of the defendants as against the plaintiffs to maintain their mill-dam at the same height as when he conveyed it to those under whom the defendants claim? It is said to be error because the record does not show that the deed from the plaintiff contained a covenant of general warranty. 'But it is answered that it does not show the contrary, and that it is the business and duty of those who allege error in the charge of the court or the proceedings below to show by the record that it existed. It is said that the water which overflowed the land of a stranger at the time of plaintiff’s conveyance, though an easement and appurtenance of the land and mill, yet being a wrong to such stranger, did not pass by the deed. The right of the stranger did not pass, possibly; but as between the bargainor and bargainee it did pass- And when such bargainor buys of the stranger he is estopped by his previous deed, and cannot, as the stranger could, complain of such easement, or detach such appurtenance Rom the possession and enjoyment of his bargainee. -The-matter contained in thfe affidavits constitutes no ground, in our opinion, for reversal. We therefore affirm the judgment.  