The opinion
Hoar, J.
1. The evidence offered by the defendants and. rejected by the court was wholly immaterial. The award, which determined the rights of the parties, decided that the defendants had no right to maintain their dam between the twenty-first day of April and the twenty-first day of October to the injury of the plaintiff’s land; and that they should not maintain it between those dates in each year, except under certain restrictions which were carefully stated. One of these conditions was, that they should not flow or raise the water in their pond above a certain mark at any time within the period prohibited. This condition was in addition to the regulations prescribed for opening the gates and removing the flash-boards, and was independent of them. They were directed to do certain things to their dam; but when those were done, they were to take care not to raise the water above a certain height by means of any part of their dam. It was therefore of no consequence what they did to their dam, or how carefully they obeyed all the other directions of the award, if by means of their dam they caused the water to flow above the height fixed by the award. The evidence offered only tended to show that the defendants had lowered their dam in the manner which the award required, and which the arbitrators thought would be sufficient to accomplish the object intended. But the arbitrators had gone farther, and had besides prohibited any use of the dam which would raise the water above a given height.
2. The construction of the award is clear. It did not merely fix the height of the dam, but provided that the water should not be raised above a certain point. Whether the water came by the natural flow of the stream, or by letting down from the pond above, if by means of the defendants’ dam it exceeded the *181 height allowed the action could be maintained. The case comes directly within the authority of Winkley v. Salisbury Manuf. Co. 14 Gray, 445 ; and the instructions at the trial were correct.
Exceptions overruled.