*23The opinion of the court was delivered by

The charge was adapted to the case which the plaintiffs’ evidence maintained, as encountered by the evidence of the defendant, viz: that for more than sixty years there had been a brook or watercourse formed upon, and flowing through, the land of Rice, to and through the land of the plaintiffs, which for more than twenty years was not known to be dry or to fail in its flow of water ; that for some years past the water in said brook has diminished at some seasons of the year, and for a few days at a time ceased to flow, but left puddles standing on plaintiffs’ premises, which were of some benefit to plaintiffs’ swine.

This is just what is meant by “ a brook in character permanent and constant in usual and ordinary seasons.” The expression of the charge was designed to respond in substance what the plaintiffs had undertaken to show by their evidence. And the charge accorded to the plaintiffs the right they claimed, if the jury should find the facts to be as plaintiffs claimed. This aspect of the case, in behalf of the plaintiffs, was set over against the other aspects which were presented by the evidence, and claim of the defendant, “that there was no brook or flowing stream of water, but that surplus water caused by melting snow and excessive rains, had been accustomed to find an outlet in that direction.” The charge in this respect, put the plaintiffs’ right to recover upon the very ground on which they put it, viz: that there was a running stream of water formed by water springing from the ground on the lands of Rice. The jury were told in substance, if that was not so, and that water only flowed .from said basin or marsh in times of excessive rains or melting snow, then the plaintiffs would have no right of action in this case. The jury found against the plaintiffs, as to the essential fact on which they based their claim in their declaration, and by their evidence. This relieves the case from any need of discussing the subject of the rights of riparian owners in reference to the water of springs and swamps on the lands of others, which feed the stream in which they claim the right. We are not disposed to volunteer a discussion of that subject when not necessary to an exposition of the grounds of our . decision. That finding of the jury precludes the plaintiffs from *24raising any question as to the disposition, or use Mr. Rice or the defendant makes of the water of the springs or swamp on Mr. Rice’s land, as shown by the evidence in this case.

The judgment is affirmed.