¶1The statute of 1821, ch. 45, for the support and regulation of mills, allows full costs to the complainant, if he prevail, although the damages he recovers be less than twenty dollars. The additional statute of 1824, ch. 261, authorizes the court to appoint commissioners to estimate the damages. But their award is not conclusive. Either party may require that the question may be referred to a jury; in which case the *346report of the commissioners may be given in evidence. But if their report is not objected to, it is to be accepted by¡the court, and judgment rendered accordingly. In the one case their inquiry is preliminary, and to be used as evidence ; in the other it becomes, by acceptance, the foundation of the judgment. The issue to to be determined is, what- yearly damages the complainant has sustained, if any, and whether the flowing is necessary, and for what portion of the year. If the jury award any damages to the complainant, he prevails. Neither party is bound to abide the judgment of the commissioners, at the peril of costs ; but costs are to be adjudged in favor of him, who is ultimately the prevailing party, upon the final trial of the issue. A party is in no fault, who chooses to submit his cause to a jury. He is merely in the exercise of a legal and constitutional right. The complainant is still the prevailing party; although the jury gave him less than the commissioners.
¶2Judgment affirmed.