#### Jonathan Gay *versus*John Welles.

In an action of debt on a judgment for annual damages, rendered upon a complaint for flowing the plaintiff’s land, parol evidence is not admissible to prove that a part of the damages were assessed for injury to land not described in the complaint, in which the plaintiff then had an estate but which has since terminated

Where such complainant averred that he was seised of a tract of land containing 200 acres, describing it, and that “ 30 acres of good and valuable land belonging to him were flowed,” it was *held>*that after verdict and judgment in his favor for the flowing, the 30 acres must be taken to be parcel of the 200, and that there was not such an ambiguity as would let in parol evidence.

This was an action of debt upon a judgment of the Common Pleas rendered in 1810, upon a complaint of the plaintiff, for flowage by the defendant’s mill-dam, of thirty acres of land of which the plaintiff alleges that he then was- and ever since has continued to be seised in fee. The yearly damage, as found by the sheriff’s jury, was seven dollars and fifty cents.

The defendant pleads payment of the annual damage assessed, up to April 21, 1813; that the plaintiff was seised of a portion of the land flowed, called *wigwam*meadow, during the life of S. Badlam, who died March 1,1813, and that A. Jones and N. Dewing were seised of the reversion ; that they thereupon entered and have ever since continued in possession of this meadow; that the damage done to this meadow amounted to two thirds of the whole damage, and for this the defendant has paid Jones and Dewing five dollars a year ; and he traverses the seisin of the plaintiff in the thirty acres described in his writ, in manner and form as therein alleged.

The plaintiff, in his replication, admits the payment as plead*224ed, and avers that he was seised and has continued to be seised of the land, in manner &c, ; upon which issue is joined.

*Oct. 28th.*

At the trial, before *Morton*J., the plaintiff gave in evidence a copy of the judgment declared on. In his original com* plaint he alleged that he was seised and possessed of a tract of land, containing about two hundred acres, situate partly in Needham and partly in Dover, through which Charles river runs, and that the mill-dam flowed “ thirty acres of good and valuable land belonging to the plaintiff.” It appeared that he was seised of a farm lying on both sides of the river, partly in Needham and partly in Dover, above the mill-dam, containing about two hundred acres, and that he had continued so seised from the date of the complaint to the present time ; that he was possessed of the wigwam meadow at the date of his complaint, and continued so possessed until April, 1813, and that this meadow lies upon Charles river below his farm and at least fifty rods, from any part of the farm.

The defendant offered parol evidence to prove, that when the jury went upon the land for the purpose of assessing the annual damages, the plaintiff actually showed them this meadow as a part of his land which was flowed, and claimed damages for the injury to this meadow, and.that the jury viewed it, and allowed damage for the injury done to it, as well as to other land. This was objected to by the plaintiff as being inconsistent with the record, and was rejected. A verdict was thereupon rendered for the plaintiff; but if this evidence was admissible, a new trial was to be granted.

*Richardson*and *Harrington,*for the defendant,

contended, that in the record produced, there was a latent ambiguity, it being doubtful whether the thirty acres were part, of the two hundred acres or were other land, and that therefore the parol evidence was admissible to remove the doubt. They cited 3 Stark. Ev., 1023, 1026, 1027, 1031 ; *Bangs*v. *Snow,*1 Mass. R. 181 ; *Faw v. Marsteller,*2 Cranch, 29; 3 Dane’s Abr. *p.*493, § 10, 11 ; 6 Dane’s Abr. *p. 14,*§ 7; *Rex*v. *Samborn,*3 T. R. 609; *Sleght*v. *Hartshorne,*2 Johns. R. 531; *Doe*v. *Oxenden,*3 Taunt. 147 ; *Jackson*v. *Stanley,*10 Johns. R. 133 ; *Jackson*v. *Hart,*12 Johns. R. 77 ; *Doe*v. *Burt, )*T. R. 701 ; *Thomas v. Thomas,*6 T. R. 671 *225*Walpole*v. *Cholmondely,*7 T. R. 138 ; *Whitbread*v. May, 2 Bos. & Pul. 593 ; *Davenport*v. Mason, 15 Mass. R. 85 ; *Brigham*v. *Rogers,*17 Mass. R. 571.

*Leland*and S. J. *Gardner,*for the plaintiff,

cited 7 T. R. 138 ; 3 Stark. Ev. 1015, note x, 1026, 1027; 2 Evans’s Poth. 210 ; Doe v. *Brown,*11 East, 441.

The opinion of the Court was afterwards drawn up by

Parker C. J.

There is no such ambiguity in the complaint, as will let in parol evidence to prove that the damages were assessea for injury to land not within the premises described. The complainant averred that he was seised of two hundred acres of land through which Charles river runs, and that by means of the mill-dam thirty acres of good and valuable land belonging to him were flowed.1 This, after verdict and judgment, must be taken to be part of the land described, — part of the two hundred acres. The evidence offered went to show that another parcel of land, not part of, nor even adjoining the two hundred acres, was taken into consideration by the jury, and that a portion of the damages was assessed for the injury done to this land, in which the plaintiff has no title. But this evidence cannot be admitted, for it contradicts the record, and would introduce the greatest uncertainty, nearly twenty years having elapsed since the judgment was rendered.

The proper remedy for the defendant was to have applied for a reduction of the damages; and that is now the only mode of relief left for him.

1

 By the Revised Statutes it is enacted, that “ the complaint,” in such case, ‘ shall contain such a description of the land, alleged to be flowed or injured, and such a statement of the damage, that the record of the case shall show, with sufficient certainty, the matter that shall have been heard and determined therein " *e.*116, § 5.