Carthew HEBLETHWAIT versus palm lev SC Mod SC in trespass c a declaration be  good upon the possession against a wrongdoer skin show SC comb Danv p Leon  Bracton lib c Mod in a action on the case for divert a watercourse the  plaintiff declare that the defendant wickedly c to break off a certain milldam  in the same way as do divert the watercourse ab antiquity custom lesson  towards the cornmill of the plaintiff by reason whereof be lose the profit of  his say mill but do not set forth that the water use to turn his mill or that  he have any other profit thereof or that the watercourse be antiquity aquae  cursus c the defendant plead special that he be and be seize of such a piece  of land upon which the dam be erect and by which the water have use to run to  his own mill which be late burn down by reason whereof he have no manner of  use for the water and therefore he break the dam prout ei bene to be for sale  there be a frivolous replication and rejoinder and thereupon the plaintiff  demurrer but the dispute be only concern the sufficiency of the declaration  and the bar it be argue for the plaintiff in error that the declaration in the  original action be not good because the plaintiff do not set forth that his  mill be a ancient mill nor do he prescribe to have a watercourse or show that  he have any benefit by it for all that he allege be that the water run towards  his mill and not that it turn the mill or do any other service beside he do  not positive allege that there be a ancient watercourse so that a traverse may  be take of that matter but only under the in the same way as for he set forth  that the defendant break the dam in the same way as do divert the watercourse  ex antiquity custom lesson which be no affirmance or averment that may be  traverse therefore this be not like the case in our book where in such action  this lie that the water to run to withhold to become used to such a mill for  these word amount to a prescription but here the plaintiff have only show that  the defendant have divert the watercourse out of its ancient channel but do  not pretend that the dam which be break and by which the water do run be upon  his own land but find his action mere upon divert the watercourse without show  he have any benefit by the water Carthew therefore the damage lie under the  per quod be to no purpose as to the plea it be good because it set forth the  truth of the matter and the defendant have no mean to traverse the antiquity  of the plaintiff mill or of the watercourse on the other side it be argue that  the bar be ill for this nothing but a collateral story and no direct answer to  the declaration and at most this only argumentative and the court incline to  that opinion the dispute rest whole upon the sufficiency of the declaration  and it be argue that the declaration be good upon the possession alone without  any other matter for prima fancy that be sufficient to maintain a action of  trespass against a wrongdoer for in several case where a man have the  possession though he have no property in the good he may have trespass c  Carthew er p this action be of the same nature with a action of trespass and  therefore good upon the possession only and that the word ab antiquity custom  lesson amount to as much as if it have be say de jure to run to withhold to  become used the judgement be affirm but holt Ch justice say that if the cause  have be try before he the plaintiff shall have prove his mill to be a ancient  mill otherwise he shall have be nonsuit and justice dolben cite a case between  t Jones heart and Basset adjudge year car which be a action for stop a usual  and convenient way to his the plaintiff S land and this declaration be hold  good without show a title