¶1On the 22d of September, 1874, the plaintiff filed a declaration in case against the defendant, laying damages at $1,000, and alleging in the first count, that on, and for a long time anterior to, the 10th day of October, 1872, the plaintiff was, and had been, ever since, the true owner, and in possession of certain premises, fully described; and that the defendant did, on the said 10th day of October, 1872, erect, keep and maintain, from thence until the commencement of this suit, a mill dam on certain lands of the defendant; and by the erection of the dam, did back up, and overflow the water of a certain stream running through the plaintiff’s said premises, whereby the defendant caused the water to flood, overflow and destroj1two acres of the plaintiff’s bottom land; and did, by keeping and maintaining said dam, caused the water to back in the stream and overflow and cover the wheel of the plaintiff’s mill situated on his said premises, which mill was of the yearly value of $200 00; whereby the defendant then, and has continually since, by the backing of the water over the wheel of the plaintiff’s mill, and the overflow of his said bottom land, damaged and injured the'plaintiff.
¶2The second count in the declaration alleged, that on the 10th of October, 1872, the defendant erected, and has since maintained and kept up, a mill dam whereby the water of the stream is backed up into a large pond and overflows and damages two acres of plaintiff’s bottom land, and the water is caused to flow back and stand in an eddy over the water wheel *231of plaintiff’s mill, preventing the mill from running, etc., to the plaintiff’s damage, etc.
¶3The defendant pleaded the general issue, and a very vague special plea, in which he set up the defense of res adjudícala, because, as the plea alleged, the title to the plaintiff’s land was distinctly put in issue on a former trial between the same parties, and the question was heard and determined and a verdict rendered for the defendant. This plea described no particular action and made no proferí of the record.
¶4Evidence was introduced for both parties. That for plaintiff tended to prove title in him continuously from a date prior to 1868, the commission of the original trespass by defendant through increasing the height of his dam, in that or the following year, the continuance of the back-water from the same cause up to the time of trial, and continuous damage therefrom to the plaintiff by overflow of his land and obstruction of his mill wheel, in the manner alleged in the declaration. That for defendant tended to show that the water had never been higher or more hurtful to plaintiff after defendant raised the height- of his dam, than it was before. The defendant himself, testified that there had been no change in his dam or pond since the last trial of a similar suit between the parties touching the same matter, no change in the water marks, and no additional damage to the plaintiff; and that since that time a part of the dam had been lowered five or six inches by washing off, the effect of which was to reduce the height of the water.
¶5The record of the former suit referred to was then offered in evidence. That suit was commenced March 5th, 1872, and terminated by a verdict for defendant at April term, 1874. The evidence was admitted over objection made by the plaintiff, the ground of which is not stated.
¶6The defendant then, by way of amendment of his pleading, filed a plea of former recovery, alleging, in substance, that the cause of action now complained of existed at the time of filing plaintiff’s writ against him in a former suit, and was alleged therein as such cause of action, and constituted the *232issue in that suit; and the question of damages claimed for the same wrong and injury, because of the same act and deed of defendant, was passed upon by the jury and a verdict was rendered for defendant; and that there has been no new or additional trespass, or any other act or deed by the defendant, not complained of and made the matter in issue in the former suit, by which plaintiff has been injured or damaged, from the date of the rendition of the verdict in that suit up to the commencement of this present action.
¶7To this plea, and also to the original special plea, the plaintiff now demurred, and the demurrer was overruled.
¶8At this point, the plaintiff moved to continue the case, on the ground of surprise by the amendment, his counsel stating in their place that they were surprised by the amended plea and not prepared to meet it; that they desired time to prepare with evidence and authorities; that they could not say to what extent they would be able to meet the amended plea with evidence showing acts of trespass since the verdict in the former suit; but they were surprised; had notanticipated such a plea, and were not prepared to go on. The court refused the continuance.
¶9The plaintiff then introduced in evidence the record of a suit between the same parties touching the same general matter, prior to the suit shown by the defendant’s evidence, in which the plaintiff recovered damages by a verdict rendered at March term, 1871.
¶10The court charged the jury that the verdict for defendant in the former, suit was conclusive upon the plaintiff, if the acts of trespass complained of in that suit were the same as those now complained of — that is, if no new acts of trespass are complained of; the legal effect of that finding being that said acts do not amount to a trespass. Under this charge the jury rendered a verdict in favor of the defendant.
¶11The errors assigned are the admission in evidence of the record of the former suit; the overruling of the demurrer to the original and amended plea; the refusal to grant the motion for continuance; and the charge of the court.
¶12*233The head-notes present the views of the court on these various exceptions. We sustain the judge in everything but his charge;. but the charge, we think erroneous, as concentrating too much on acts of trespass without explanation of what would amount, in contemplation of law, to such acts. Thp charge, as given, would be apt to direct the minds of the jury to the positive act of making the dam or l’aising it higher; whereas, all that might have occurred prior to the former suit and still no water have been thrown back upon the plaintiff so as to damage him. Maintaining the dam after that suit may have caused the channel to fill with earth or sand so as to cause higher water after the suit than before, and thus damage the plaintiff; or some damage may have occurred by the fall of heavier rains after than before, even with the same depth of channel. What the defendant testified to would seem to negative all this in respect to the period of time after the trial of the former suit, but not necessarily as to the time between the commencement of that suit and the trial thereof.
¶13At all events, the continuance of the state of things which the defendant’s acts established was a vital element of the case, and the jury should have passed upon the evidence and determined whether or not any damage resulted to the plaintiff therefrom by either a permanent or temporary increase in the height of the water at any time between the bringing of the former action and the commencement of that on trial.
¶14Judgment reversed.