It appears to the court, that the questions arising in this action were settled in the case between the same parties, reported in 12 Met. 142, and that this is an action for the continuance of the same nuisance.

The point decided, upon the complaint of these parties, under the mill act, was, that the dam raised by the defendant,, for a head of water for working his mill, should not be kept up so as to flow the complainants’ meadow, during a certain part of each year. This was within the jurisdiction of the jury by statute, and their finding is conclusive.

It is not any particular structure of stone, wood, or earth, to be kept open and unclosed, to which such a judgment applies ; it applies to a structure or contrivance, made to raise a head of water by obstructing the natural course of a stream, the effect of which is to immerse the complainants’ meadow during summer.

The attempt of the defendant was to show that a particular structure, called the middle dam, was that which *553obstructed the flow of the water, when the sheriff’s jury went out; that it was to this, and not to the factory dam, that the judgment referred. But this evidence, we think, was rightly rejected. If, when that dam was removed or kept open, the complainants’ land was drained of the water, raised by raising a head of water for the mill, then the defendant had substantially complied with the judgment, and the action at common law would not lie. But if the defendant’s arrangements were, that he could keep open and unclosed the particular dam, which caused the obstruction, and flooded the complainants’ meadow, and at the same time, by using another dam and closing other gates, he could keep up the water to the same height, and flow the complainants’ meadow, the whole year, as before; then it was an illusory and not a substantial or legal compliance with the judgment. It is stated, that the factory dam makes the mill pond; if by this is understood that this dam raises the head of water for the mill, and also floods the complainants’ meadow, then it is the dam contemplated in the judgment, and this conclusion could not be affected by the evidence offered, tending to show that the jury had another in view, in finding the verdict, on which the judgment was rendered.

Judgment on the verdict for the plaintiff.