#### Ebenezer Adams, Complainant, *versus*Silas Pearson.

Where, upon a complaint under the statute, by the owner of land flowed by the respondent’s mill-dam, it is adjudged that the respondent has no right to flow the land without the payment of damages, and that he pay a certain sum as the yearly damage, he is estopped to plead in bar to a complaint for an increase of such sum, a right by prescription, or by a grant previous to the judgment, to flow the land without payment of damages.

So he is estopped to plead in bar that no damage is done to the land, for that question must be determined by the jury upon a complaint for an increase or decrease of the sum adjudged for the yearly damage.

This was a complaint to the Court of Common Pleas, setting forth that the complainant is the owner of certain land in Newbury; that in 1812, the respondent built a mill-dam, whereby the land was flowed ; that upon a complaint to'the Common Pleas in 1814, by the same complainant against the same respondent, it was adjudged that the complainant should recover the sum of two dollars as the yearly damage done to the land by the flowing ; and that the yearly damage exceeds that sum ; — and the complainant prays that a jury may be empannelled to appraise the yearly increased damage.

The respondent pleads in bar, 1. A prescriptive right to flow the land for the purpose of raising water to drive the mill: — 2. That the flowing causes no damage to the land :1 — 3. A grant by the town of Newbury, in 1689 to one Short, his heirs and assigns, under whom the respondent claims, of all the town’s right in the stream, so long as the grantee, his heirs or assigns, should build and maintain a sufficient corn-mill for the town’s use, and that the dam was built and maintained in virtue of this grant.

The complainant replies, that the respondent is estopped to *347piead these pleas, because the complainant made a complaint in 1814 to the Common Pleas, praying that a jury might be empannelled to appraise the yearly damage ; that the parties agreed, on the record, to refer the complaint, and that it was further agreed that the referees should have all the powers in relation to the complaint, that a court and juries would have under the statute if the complaint were not referred, and that upon their report the same proceedings might be had as upon a verdict of a jury in like cases ; that the referees made a report (which is recited) in which they awarded that the respondent had not any right to flow the land without payment of damages, and that the complainant should receive of the respondent the sum of two dollars as the yearly damages ; that this report was accepted by the Court of Common Pleas in 1815, and thereupon judgment was entered, which judgment remains in force.

To this there was a general demurrer.

Moseley, for the complainant,

referred to *St.*1795, c. 74, § 2 ; *Johnson*v. Kittredge, 17 Mass. R. 76.

*Cushing, contra,*

cited Co. Lit. 352 *a,*352 *b ; Lowell*v. *Spring,*6 Mass. R. 398 ; *Staple*v. *Spring,*10 Mass. R. 72.

1

 See Revised Stat. *c.*116, § 8.

Wilde J.

delivered the opinion of the Court. We think it very clear that the defendant’s pleas in this case cannot be sustained, and that the replication by way of estoppel is good.

These pleas would have been good answers to the original complaint in 1814.2 But it having been settled and adjudged on that complaint, that the complainant was entitled to damages, the defendant cannot now be allowed to aver any thing inconsistent with that adjudication ; otherwise there would be no end to controversies.

Nor can the defendant plead, that since the judgment in the former process the complainant has sustained no damage, or no increased damage ; because the statute provides, that after the yearly damages shall have been ascertained by verdict and judgment thereon, the same shall be the measure of the yearly damages until the owner or occupant of the mill or the owner oi occupant of the land flowed, shall, on a new complaint, ob*348tain an increase or decrease of the damages.1 And the question, whether the damages so ascertained shall be increased or decreased, cannot he determined by a trial at the bar of this Court, but by a jury to be summoned by the sheriff in the manner directed by the statute.

The damages in this case were ascertained by referees mutually chosen by the parties ; but their report is equivalent to a verdict, and judgment thereon is as binding as a judgment on the verdict of a jury. 2

*Replication adjudged good.*

2

 It is now provided that the respondent shall not plead in bar of the complaint, that the lana therein described is not injured by the dam. Revised Stat. c. 116, § 8.

1

 See Revised Stat. c. 116, § 33.

2

 See *Gascoyne*v. *Edwards,*1 Younge & Jerv. 19; *Allen*v. *Milner,*2 Crompt. & Jerv. 53.