The opinion of the court was delivered by
Mr. ChiEE Justice McIver.
This was an action to recover damages for flowing the lands of the plaintiff by the waters of defendant’s mill-pond. A brief statement of certain undisputed facts is necessary for a proper understanding of the questions presented by this appeal. As far back as the year 1838, Joseph Hodge ond Owen Bockhart bought a large tract of land from H. D. Baw, upon which there was a mill-site; that as set forth in the answer of Owen Bock-hart, in the proceeding for partition, afterwards referred to, there was an agreement between those parties that what *50was called the mill tract, containing 300 acres, upon which saw and grist mills were situated, “should be held in partnership, and the saw and grist mills kept up during their joint lives and the life of the survivor, at the joint expense of the said Joseph and this defendant, and that the profits, if any, should be equally divided and the losses equally borne;” that upon the death of Joseph Hodge a proceeding was instituted in the Court of Equity b}'- Gatsy Hodge and others, as heirs at law and devisees of said Joseph Hodge, against said Owen Lockhart, amongst other things, for a partition of said lands; that under said proceedings the lands were partitioned, and the portion containing the mill-site was allotted to Owen Lockhart, and other portions to the heirs and devisees of Joseph Hodge, as appears by a plat annexed to the “Case” — the portion marked A on said plat being allotted to Owen Lockhart, and the parcels marked G and F, with perhaps other portions, being allotted to the heirs and devisees of Joseph Hodge; that upon the death of Owen Lockhart, his lands were sold for division, and the lands embracing the mill-site were purchased by his son, W. J. Lockhart, under whom the defendant claims; that the plaintiff became the owner by intermediate conveyances of the parcel of land marked F on the plat above referred to, and the action is brought for flowing that parcel of land by the waters of the defendant’s mill-pond, the mill being on a water course known and designated on said plat as Deep Hole Swamp. It appears that the mill is located below. The parcel of land next above it on said water course is the tract marked G on the plat, and tract F is next above G. On the trial of the case the plaintiff offered in evidence, against the objection of the defendant, the record of two actions brought by Sallie C. Hodge and others, who were devisees and heirs at law of Joseph Hodge, then the owners of the tract G, against W. J. Lockhart, who was then the owner of the mill tract, now owned by the defendant herein, for the purpose of recovering damages for flowing said parcel of land, in both of which actions judgments were *51recovered against the said W. J. Dockhart, from which there was no appeal.
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*51The present case came on for trial before his honor, Judge Izlar, and a jury, and a verdict having been rendered in favor of the plaintiff, and judgment having been entered thereon, the defendant appeals upon the several grounds set out in the record, which, together with the charge of the Circuit Judge and a copy of the plat hereinbefore referred, to should be embraced in the report of this case.
1 The first question in natural order is that presented by the third ground of appeal — -whether the Circuit Judge erred in receiving in evidence the record of the two actions brought by Sallie C. Hodge against W. J. Dockhart, the grantor of the defendant. It is contended by the appellant that these actions were res inter alios acta, inasmuch as those actions were brought to recover damages for flowing a different parcel of land from that involved in the present controversy, and were brought by persons under whom plaintiff does not claim. While it may be true that this would be sufficient to show that those records would not
be competent evidence to show that the question here involved was res adpidicata, yet it does not follow that those records were either irrelevant or incompetent for any other purpose. When it is remembered that one of the main defences set up by the defenddant in his answer is that he had acquired by grant to Owen Dockhart, under whom he claims, the rights to flow the lands of the plaintiff, so far as may be necessary to the full use and enjoyment of his mill, and when it is further remembered that there is no pretense that such right was acquired by any express grant, but only implied from the fact that Owen Dockhart and Joseph Hodge were once the owners of all of the land, which they had bought with a view to the establishment and maintenance of the mill, and hence had the right to flow any or all of the land, if necessary for the full enjoyment of said mill; and that *52upon the severance of this common heritage this right followed all the various parcels into which the land had been divided, and became a burden in the nature of an easement thereon, it seems to us that the evidence objected to became quite pertinent to such defence, and certainly was neither irrelevant nor incompetent; for it clearly tended to show facts inconsistent with and contradictory of such defence. Besides, it,is perfectly manifest from a bare inspection of the plat that it would be a physical impossibility for the water from defendant’s mill-pond to reach the parcel of land marked P on the plat without passing over the parcel marked G; and if it had been determined in a controversy between defendant’s grantor, W. J. Lockhart, and certain of the Hodge heirs, that he had no such implied grant as above set forth to flow that portion of the Hodge land, that certainly would be a circumstance tending to weaken the claim of right to flow another portion of the same Hodge land, lying immediately above, by reason of any such implied grant to flow any or all of the Hodge land; and this circumstance would be much strengthened by the fact that W. J. Lockhart, when the second action was brought against him, abandoned the defence of right arising under the alleged implied grant, and set up another and distinct defence based upon an alleged right conferred by special legislative enactment. While, therefore, the testimony in question may or may not have been sufficient to defeat the defence based upon the alleged implied grant, yet it was relevant and competent. The third exception is, therefore, overruled.
*532 3 *52The first ground of appeal imputes error to the Circuit Judge in instructing the jury that there was no evidence that defendant was entitled, under the implied grant above referred to, to flow all the lands originally owned by Hodge and Lockhart, and in withdrawing from the attention of the jury what was claimed to be evidence tending to establish that fact. This exception does not fairly represent what the judge said to the jury upon this point. What he *53did say was this: “As to the second defence set up by the defendant, that he holds by grant to one Owen Lockhart, his heirs and assigns, the right to overflow the lands of the plaintiff, so far as may be necessary to the full use and enjoyment of his mill, etc. I remember no evidence tending to support this defence. This being so, you will not be troubled in your investigations with the questions growing out of this defence.” This language was used just after he had instructed the jury explicitly that the facts were exclusively for them, .and that he would endeavor not to intimate even any opinion in reference thereto. Hence, when he told the jury that he remembered no evidence tending to show any such grant as that claimed, and this being so, the jury need not trouble themselves about that question, the judge evidently meant, and was doubtless understood by the jury to mean, that he remembered no evidence to that effect; and, if this be so, that there was no such evidence, of which the jury were the exclusive judges, then they need not trouble themselves ■ about that matter. But waiving this, and assuming that the jury were instructed that there was no evidence to show any such grant to Owen Lockhart, we think there was no error, for we have not been able to find any such evidence. It is contended that such evidence is to be found “in the affidavit'of W. J. Lockhart introduced by plaintiff, as well as In the recitals of the bill and answer on which the writ of partition was ordered.” We have carefully examined the papers thus referred to, and we do not think they contain any evidence that Owen Lockhart, 'his heirs and assigns, had any such grant, either express or implied. Indeed, if the record of the proceedings in partition show anything upon this point, they show that even if there was ever any such implied grant as that claimed, it terminated with the life of Owen Lockhart, for the extract from his answer, which is quoted above, shows that the partnership in the mill business between himself and Joseph Hodge and the agreement was that “the saw and *54grist mills should be kept up during their joint lives and the life of the survivor.” So that even if a grant to Owen Lochhart could be implied of a right to flow ail}? or all of the lands necessary to the full use and enjoyment of the mill, such grant terminated with the life of Owen Dock-hart, and did not .descend to his heirs and assigns. The first exception, in any view taken of it, must be overruled.
4 The second exception cannot be sustained for the reason, even if there were no other, that the Circuit Judge was not requested to charge the proposition which it is claimed he erred in failing to charge.
5 6 The fourth exception cannot be sustained, for it is very clear that the law was correctly laid down as to the mode by which an easement may be acquired by prescription. The special objection to this portion of the charge, as we gather from the argument here, is to the use of the words, “continuous and unbroken,” which it is assumed conveyed the idea that the use must be constant. There is no warrant for this assumption in anything found in the judge’s charge. If defendant had desired that the jury should have been instructed more explicitly as to the sense in which those terms were used, he should have submitted a request for such instruction, and this was not done.
The fifth exception must be overruled, as not in conformity to the spirit and intent of the fifth rule of this court, as has been frequently held.
We may add, however, that the only one of the grounds for a new trial, except the first (which clearly cannot be considered by this court), which have not already been considered is the third. That ground is based upon an entire misconception, for the Circuit Judge not only did not instruct the jury as there charged, but there is not a word in his charge with reference to any estoppel.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.