The opinion of the court was pronounced by

— It appears the place where this dam was located was an inclined plane of rocks, descending with the stream; and the dam was, in the usual form, made oblique on the up-stream side. In giving construction to the deed from Painter,the court ruled, and so charged the jury, that the two feet might be measured perpendicularly from where the foot or up-stream part of the dam rested on the rocks, or from low water mark at that point. Of this decision the plaintiff complains, and insists that a line to be drawn from the extreme vertex of the dam perpendicularly to the low water mark, immediately below this, vertex, is the measure of the privilege.

After examination, this court is not inclined to reverse the construction given by the court below. It in effect but allows the defendants to fix on a location within.their grant, and then raise a dam, or the water,, regardless of the shape of the dam, which shall in. no place be above two. *193feet above a horizontal line from the up-stream base or foot of said dam. What is built up from the rocks below to this horizontal line is merely adventitious; constituting no part of the height of the dam, but merely filling up the fall in the rocks below.

Let us next inquire what was the practical application made of this construction to the case on trial. After fixing on such a construction and on the right of the defendants to have the two feet measured perpendicularly over the up-stream base of the dam, the court in substance charge the jury that there was in the case no testimony tending to show that the defendants by their dam had ever raised the water above two feet at that point, In this we consider the charge is erroneous. The case states there was testimony tending to show that “ from 1808 to 1820 the defendants’ dam had been only three feet high.” Now take this most favorably for the defendants, and say this three feet was from the apex of the dam to the water below, still this must have raised the water some at the up-stream foot of the dam. The case then further states, “ from 1820, in the course of six years, it had been raised to six feet and so continued. Now most obviously, if the dam in 1808 raised the water any at the foot, as it must, to. have been of any use, the three feet additional height must have raised the water more than “ two feet” even at the up-stream foot of the dam. There was therefore in the case testimony tending to show the defendants had exceeded their privilege, even at that point fixed on by the court as most favorable to them. This testimony the court in charge should have left to the jury.

Judgment reversed.