Bisher v. Richards. deed of plaintiff conveying a title in fee. It was the right of possession only that was in issue between the parties. Both plaintiff and defendant, previous to July 25, 1853, held their possessions under similar leases; and their relative rights, under the statute of limitations as existing on the 25th of July, 1853, could not be changed by any amendment of plaintiff's lease, or by its renewal, or exchange for an absolute deed of conveyance in fee simple. Nor do we perceive any error in the charge of the court in relation to the decree finding the sale of the land by McGaffick to Crusen void as against the complainants. In order to give any effect to that decree the plaintiff should have shown his right of possession to have been derived and held under and by virtue of it, as against the defendant. And this is not shown by the record, nor pretended by counsel to be the fact. We perceive no error in the record. The judgment of the court of common pleas must therefore be affirmed, and the petition in error dismissed at plaintiff's cost. Judgment accordingly. SCOTT, PECK, and GHOLSON, JJ., concurred. BRINKERHOFF, C. J., having formerly been of counsel, did not sit. 495] *JACOB BISHER v. MILVERNE RICHARDs. 1. In a case of which the court of common pleas would have had original jurisdiction, brought into that court by appeal from a justice of the peace, if the parties proceed to trial upon the merits, without objection to the mode in which jurisdiction was taken, it is too late after verdict to make such an objection. 2. In an action brought by a supervisor to recover damages sustained by the traveling public on account of the deepening of a ford on a county road, by the elevation of a dam erected for the use of a mill on the stream crossed by the ford, evidence that the inconvenience to the public would have been removed by a change in the bed of the stream, which could have been easily made, and which the defendant, the owner of the land and mill, before the commencement of the action, offered to make, but was not permitted to make by the supervisor, is competent upon the question of damages to be ascertained and assessed by the jury. Bisher v. Richards. 3. The laying out a state road over the same ground upon which a part of a county road was established, does not extinguish the county road. The two may well co-exist as to the part occupied in common, for the benefit of different classes of the traveling public. IN error to the district court of Highland county. The defendant in error is the supervisor of a road which passes through the land of the plaintiff in error. A stream of water flows through the land, upon which the plaintiff in error and those under whom he claims had, as early as 1806, erected a mill. A county road, which was laid out in 1813, crosses this stream. This crossing, from the time of the laying out of the road up to the commencement of the action, was by means of a ford. The plaintiff in error having raised his dam, the water at the ford was so deepened as to render the crossing more difficult. For this obstruction an action was brought by the defendant in error, as supervisor, before a justice of the peace. This action was defended before the justice, and a judgment was rendered against the plaintiff in error. He took an appeal to the court of common pleas. In that court the defendant in error filed his petition, setting forth two causes of action, one for an obstruction by [496 raising the dam, the other for an obstruction by means of a fence across the stream below the ford. To this petition the plaintiff in error filed an answer setting up different grounds of defense. No objection to the jurisdiction was then made by the plaintiff in error, but the case proceeded to a trial upon the issues presented by the petition and answer. All the evidence offered is set out. Three bills of exceptions contain a statement of the evidence bearing upon the rulings of the judge to which exception was taken. From the first bill of exceptions it appears that "evidence having been offered tending to show that the defendant and those under whom he claimed had for a long space of time before the commencement of this suit, to wit, from the year 1806 (except at intervals for short periods of time, when the same had been destroyed by fire and flood), kept up and used mills on the said creek in the said petition mentioned, at a point below the point where said road in the petition mentioned crosses said creek, the machinery of which had been and was propelled by the waters of said creek, and Bisher v. Richards. kept up and maintained at the point where the dam of the defendant now stands, a dam not uniformly of the same height, for the purpose of turning the waters of said creek to the said mills. The defendant, to maintain the issue on his part, then offered to prove by the testimony of witnesses that at the time of the obstruction claimed by the plaintiff to have been made in the said road, the defendant was using no more of the water of said creek by means of said dam than was necessary and convenient for propelling the machinery of his said mills. Which evidence being objected to by the plaintiff's counsel, was not permitted by the court to go to the jury," and the defendant excepted, From the second bill of exceptions it appears that "the defendant, to maintain the issue on his part, called a witness and offered 497] to prove, in mitigation of damages, that the said witness was one of the commissioners of the county, and that he had visited the ford in the creek mentioned in the petition, which is charged therein to be obstructed by the defendant's mill-dam, and that said ford in said creek could be amended and said obstruction removed by filling up said ford. And, further, that the defendant offered, when notified of said obstruction, before the commencement of this suit, to remove the said supposed obstruction in said road, by filling up said creek, and raaking said ford as safe and convenient for travelers and persons using said road mentioned in said petition as it was before said obstruction was put in said road, which the plaintiff refused to allow him to do, and which said testimony being objected to, was refused by the court, and, on motion of the counsel for the plaintiff, the court excluded said testimony from the jury, and the same was overruled," and the defendant excepted. The third bill of exceptions sets out the record of the survey and location of a state road over and upon the same ground before covered by the county road, and other evidence offered by the plaintiff in error to establish the proposition that the county road became merged in the state road, and that, therefore, the defendant in error, as supervisor, had no interest in or concern about it. But the defendant in error objected to this testimony, and the court excluded it, and plaintiff in error excepted. The verdict of the jury having been against the plaintiff in error, he filed a motion to set it aside, and for a new trial, on the grounds that the verdict was against the law and the weight of the evidence, Bisher v. Richards. and because the court erred in overruling the evidence offered by him. The court overruled this motion, and rendered judgment upon the verdict. And to reverse this judgment the plaintiff in error filed his petition in error in the district court, insisting that the common pleas erred: 1. In assuming and exercising jurisdiction of the case, *be- [498 cause the justice of the peace from whose judgment the appeal was taken, had no jurisdiction of the subject-matter of the action. 2. In rejecting the evidence as set out in the first bill of exceptions. 3. In rejecting the evidence as stated in the second bill of exceptions. 4. In its action as stated in the third bill of exceptions. 5. In refusing to set aside the verdict, and in entering judgment thereon. The district court affirmed the judgment of the common pleas. To reverse this judgment of affirmance, a petition in error was filed in this court. J. H. Thompson and Nelson Barrere, for plaintiff in error. GHOLSON, J. As to the first point raised in this case (the jurisdiction of the court of common pleas), we think that, whatever force it might have claimed, had it been presented at the proper time, the plaintiff in error must be regarded as having waived it, by his failure to object, and proceeding to a trial upon the merits. The case was one of which the court of common pleas would have had original jurisdiction. It was brought by the plaintiff in error into that court by appeal. He answered the petition, and proceeded to trial without objection. He can not be allowed thus to speculate on the chance of a favorable verdict, and then turn around and deny the jurisdiction of the tribunal to the decision of which he had submitted his case. It was competent for that tribunal to assume jurisdiction by the consent of the parties, and the parties must be understood as having given such consent. We can perceive no error in the rejection of the evidence shown to have been offered by the first bill of exceptions. The test of the right of the plaintiff in error to deepen the ford could not [499 401 VOL. IX-26 Bisher v. Richards. depend upon the power required to propel the machinery of his mill. What might be necessary and convenient to propel the machinery; might be unreasonable as compared with the rights of others in their use of adjoining land, or of a right of way acquired over the land of the owner of the mill. If the mill was erected before the road, and the water was used in the same manner at the time of its erection as at the time of the alleged obstruction, that might be a defense; but if the flow of the water was changed, as by the elevation of a dam, the fact that the machinery of the mill required this change, which we understand was proposed to be proved, would furnish no reason for a consequent inconvenience and injury to third persons. The second bill of exceptions discloses facts which present a question of some importance. It involves the relative rights of the plaintiff in error as owner of the land and mill, and of the defendant in error as representing the public, in the road and ford across the stream. It is conceded that, subject to the right of way of the public, the plaintiff in error was entitled to the benefit of the fall of water upon his land for the purposes of his mill, and might make any use of the same not inconsistent with the right of the public. Such is the general principle; but whether particular acts, which circumstances may show to be reasonable and convenient in the exercise of their respective rights, may or must be done by the plaintiff in error, or by the authorities having the control of the road on the part of the public, the general principle does not dem onstrate. In this case it appears that at an early period in the settlement of the country a mill was erected, a thing which has been deemed a public interest, and subsequently a road was laid out across the stream which supplied the mill, and the mode of passage adopted was a ford. The very settlement and improvement of the country may have affected the quantity of water flowing in the stream so 500] as to render *necessary the elevation of the dam and the consequent occasional deepening of the ford. Should the improvement in the mode of crossing keep pace with the improvement of the country, or have the public authorities the right to require that the mode of crossing first adopted shall be continued, to the destruction, it may be, of the use of the water-power? If an improvement in the ford, or the erection of a bridge, would accommodate the public as well, or better, and preserve the use of the water |