privileged window? Is he precluded from building at the distance of three rods, or one rod, or even at a less distance, from his neighbour's windows? I am not aware, that the rule was ever claimed to extend so far. It goes no further, as I understand it, than to protect windows, which have been long used, from being obstructed, or, as it is often expressed, in the books, "stopped up." To apply these cases, then, by analogy, to the present question, it would be necessary, that the Defendant in this action should have diverted the stream, or, in some way, have deprived the Plaintiff of the use of it. Whereas the complaint, here, is only of a temporary interruption of part of the stream, the whole of which eventually passes by the Plaintiff's mill: an interruption, exactly similar to that in Palmer v. Mertigon, and much less than that in Weston v. Alden; in both which cases, it was resolved, that the damage sustained was no legal injury.

One further consideration, which, though certainly not conclusive in any case, is, at least, entitled to attention, has some influence on my mind. The same state of facts, upon which we are now to decide, must, in all probability, have occurred, in very numerous instances, long before this time, both in England, and in this country. But it does not appear, that an action has ever been sustained, in such a case.

Upon the whole, I find myself, at present, constrained to think, that the Plaintiff has no cause of action.

PETERS, J. gave no opinion, having been formerly of counsel in the cause.

New trial not to be granted.

1 ESP. REP. 679.

JEBB v. POVEY.

TRESPASS for breaking and entering the Plaintiff's close, called the Ditch, in the parish of Egham, in the county of Surry; and breaking down and subverting the soil, &c.

The Defendant pleaded, "That she was possessed of an ancient messuage; and that, from time whereof the memory of man was not to the contrary, a certain stream or watercourse did run and flow, and had been accustomed to flow, from a certain close in the parish of Egham, in the occupation of one A. Mackison, near to the Plaintiff's close, and to the extremity of the locus in quo, towards the south, and along the said place called the Ditch, and adjoining to the Defendant's messuage; and prescribed for a right to have the use and benefit of part of the said water, for the use of her said messuage, and the occupation thereof; and then, because the said Plaintiff diverted the course of the said watercourse, and obstructed it in the said close called the Ditch, so that she could not have the benefit of the said watercourse, nor remove the obstruction without entering the said close, justified the supposed trespass," &c.

The Plaintiff traversed the course of the watercourse, as stated in the Defendant's plea, and issue was joined on the

traverse.

The case, as it appeared in evidence, was, That there were several cottages adjoining to the Defendant's cottage; to each of which belonged a well, or dipping-place, which were supplied with water, for the use of their houses, from the stream in question.

The Defendant contended, that the water had been used to flow for the supply of those several wells from time immemorial. And the Plaintiff, on the other hand, insisted, that the usual and natural course of the water was down the ditch (the locus in quo ;) and that the owner of the soil of which he was seised, had only suffered and permitted the water to flow by the end of the ditch to the houses of the several cottagers.

To prove that the ancient and immemorial course of the water was as stated in the plea, the Defendant called one of the occupiers of those cottages.

He was asked, on his voire dire, If he did not consider himself as entitled to the benefit of this stream of water, in the same way as it was claimed by Mrs. Povey the Defendant? He answered in the affirmative.

The Plaintiff's counsel then objected to his competence; as he came to support a right to a watercourse, by which (if the Defendant succeeded) he would be benefited. They insisted it was like the case of commoners, where, if the question to be tried is a general right of common, a commoner is not a competent witness; though it is otherwise where common is claimed by prescription, in right of a particular estate. They said, that, in the present case, the witness came to support a claim of a general right to this watercourse in which he was interested, and not merely to establish the Defendant's case, but the course of the stream itself, that in fact being the issue; and the verdict in this case would be the evidence to establish it.

It was answered, by the Defendant's counsel, that the verdict here could not benefit the witness; it was res inter alios acta. The question was, whether the Defendant was entitled to that right by prescription? The house of the witness lay below that of the Defendant. It did not follow, that because the Defendant had a right to the water, that the witness had it also.

BULLER, J. It is certain, that if the record in this case can be given in evidence, in an action brought by the witness, to try the same right to this watercourse, the witness is incompetent. I am of opinion that it can. The issue in this case is not on the right of the Defendant, claimed as belonging to the messuage occupied by her; it is on the course of this stream, according to a particular description set forth in the pleadings. The distinction put by the Plaintiff's counsel is the right one. If the right of common is claimed by all the customary tenants, one is not a witness for the rest; but it is otherwise, if it is claimed as belonging to a particular messuage. The question here is, to ascertain a general right claimed by all the persons occupying the cottages; I therefore think the witness not competent.

The Plaintiff had a verdict.

Shepherd, Serjt. Garrow, and Bayly for the Plaintiff.

Adam and Marryat for the Defendant.

12 MASS. REP. 311.

JEWELL v. GARDINER.

CASE against the Defendant for building a dam across the stream called Cobbisee, by means whereof the water of the said stream was flowed back upon a dam built by the Plaintiff across the same stream above the dam erected by the Defendant, so as to prevent the working the Plaintiff's mill.

The Defendant pleaded 1st, the general issue, which was joined by the Plaintiff. 2d, In bar, that the Plaintiff was never possessed of the close mentioned in his writ and declaration, in which the said mill therein mentioned is situated; and tenders an issue to the country, which was joined by the Plaintiff.

In a third plea in bar, the Defendant alleges that he is seised in fee of one half of the land over which the said stream flows, viz. the northeasterly side thereof, and of the close at the northeasterly end of the dam erected by the Plaintiff:-that the Plaintiff, at the time of erecting his said dam, or at any time since, had and hath no right of entry; but without right or authority of law, and against the will of the Defendant, erected said dam, and the same hath continued, against the will and consent of the Defendant to the time of the commencement of this action-and that he is seized in fee of all the land flowed by said stream on the northeasterly side of the centre line thereof, between his the Defendant's said mill-dam and the dam erected by the Plaintiff, and of the land on each side and adjoining his the Defendant's said mill-dam-wherefore the Defendant rebuilt his said dam, &c. which he lawfully might do, and which is the same building, &c. complained of by the Plaintiff, &c.

To this plea the Plaintiff demurs generally, and the Defendant joins in demurrer.

Mellen for the Plaintiff.

Wilde & F. Allen for the Defendant.

The cause being continued nisi for advisement, judgment was rendered at the following September term in Berkshire.

PARKER C. J. We do not see any room to question the sufficiency of the Defendant's third plea in bar. He had a right to erect a dam across the stream, where he owned the land on both sides of the stream as well as the land over which the stream flowed; and he is answerable in damages only to such persons as is prejudiced in some estate or right which he lawfully enjoyed. Now it is plain from the facts stated in the plea, and admitted by the demurrer, that the Plaintiff had no right to stop the water above by a dam extending from shore to shore, he having no right to the northeasterly shore; but having trespassed upon the Defendant in fixing his dam there. The Defendant had a lawful right to take down the dam, erected without his consent upon his premises: and having this right, it would be singular that he should be answerable for consequential damages, for the use of his own property, to one who had no title to the property supposed to be injured.

Defendant's plea good.

7 MASS. REP. 496.

MOSES KING v. PETER KING.

THIS was a writ of entry sur disseizin, in which the demandant counted upon his own seizin of "three undivided eighth parts of that certain part of the mill privilege at and upon the great falls of Sheepscut river, which lies eastward of the centre of the said river," and upon a disseizin by the said Peter on the day of the purchase of his writ.

The action was tried upon the general issue before Thatcher, J.-It appeared at the trial that Benjamin King, father of the demandant and also of the tenant, was seized of two tracts of land situated opposite to each other, on the east and west sides of