¶1The material averment in the complaint on which the proceedings in this case are founded is, that the respondent “ has raised his dam above the point fixed by the former jury, for the purpose of carrying new machinery.” There s no express provision for a new complaint in such a case , out there is no doubt that it might be maintained under the 4th section of c. 116 of the Rev. Sts. as an original complaint founded on a new statement of facts, to which the assessment on the former complaint would be no bar. And so it was held in Johnson v. Kittredge, 17 Mass. 76. But the com *360plainant has failed to prove the gravamen on which his complaint is founded, which is negatived by the verdict ; the jury having found that the respondent has not raised his dam, and the water by his said dam, higher than the point established by the former jury. Thus the material issue has been found for the respondent.
¶2But the counsel for the complainant contends that the complaint may be maintained under § 33 of c. 116 of the Rev. Sts. which provides for a new complaint, and a new assessment of damages, when either party shall be dissatisfied with the annual compensation established by a former jury. But there is no averment in the complaint which can bring the case within that section. It is not alleged that the complainant is dissatisfied with the former compensation allowed. And we hold that such an allegation, or some one equivalent, is essential to the maintenance of a complaint on the 33d section ; especially, when the complaint is well founded, as this is, on another section of the statute. The allegata and probata must agree. The complainant cannot found his complaint on one section of the statute and have his damages assessed under another. And so it was decided in Vandusen v. Comstock, 9 Mass. 203, which is a decision directly in point.
¶3Judgment of the court of common pleas affirmed