Gibson, C. J.
— The testimony of Peterson was properly admitted. He owned a tract of land on the right bank of the creek, subject to the right of the defendant to flood it, by raising the water to tire height of a mark in a rock in the opposite bank, designated in a conveyance to the defendant from the witness; and hence an argument that he was practically, if not theoretically, interested in the maintenance of the action, as it might, perchance, compel the defendant to reduce the height of his dam even below the point licensed by the witness. His interest, however, was not direct but incidental, and not fixed but contingent. He could gain nothing by the verdict which he could enforce. It would be exclusively in the power of the plaintiff to sue out execution of his judgment when he had obtained it; and the defendant might choose to keep up his dam even in despite of it. It is not probable that he would, but he might do so ; and instances of invincible obstinacy in similar cases have been met with. The interest of the -witness, in the event of the suit, therefore, was not only incidental but contingent; and it was consequently not such as to exclude him. But it has been argued that it would be incongruous to exclude him in an assize of nuisance, because the judgment is quod permitlat prosternere nocumentum ; and admit him in an action on the case because the judgment is for damages. The supposed incongruity, however, has no existence in fact; for the defendant might still purchase his peace with the plaintiff even after judgment of prostration; and the interest of the witness would be nevertheless incidental and contingent. Besides, it would be enough to obviate the force of the objection that it rested on no principle of law, but on a principle of hydrostatics, which is not a subject of legal adjudication; and that it went, not to the competency of the witness, but to his credibility.
The objection to the testimony of Crozer, who had granted no license, is still less plausible. He had no encumbrance to evade by the practical effect of the plaintiff’s action. He had granted nothing; and if his rights were invaded he had an action for the injury, on the trial of which the verdict in the action before us would be inadmissible for any purpose.
The remaining exception is equally unfounded. The declarations *375of an owner are competent evidence against a successor to the title only on the ground of confession by a predecessor, who had power to affect it while he owned it. Such is distinctly the principle of Ivat v. Finch, 1 Taunt. 141; Walker v. Broadstock, 1 Esp. Ca. 458, and Gibblehouse v. Strong, 3 Rawle, 477. But a confession, to be such, must be prejudicial to him who makes it; and for that reason it is, that the sacrifice of interest it involves is allowed to be an equivalent for an oath, the pocket being as good a touchstone of truth as the conscience. Entries by which a deceased person charged himself, are allowed to affect another with whom he had neither privity nor connection ; but a privy may be affected by admissions of his predecessor, even while the latter is living within reach of the process of the court. The key to the difficulty which arises out of the difference is, that a privy stands in the shoes of the person he represents, whose admissions, under a consciousness of their effect, are not of inferior degree to his testimony under the influence of an oath. But such admissions must, in the apprehension of the party, be concessions ; and what fact detrimental to him did Nathan Sharpless mean to concede, by asserting a right to maintain his dam at the height prescribed in Abraham Pennel’s conveyance to him ? True, he owned, at the same time, the tract above, on which the plaintiff’s mill had since been built; but it was indispensably important to his mill below to maintain his right to flood the property on the opposite bank, the consequences of which, to his property above, seem to have been of less consideration. As he built no mill on it, we must suppose he did not estimate its advantages as a site very highly; nor does it appear that it would have afforded sufficient power, without the easement, for the tail-race, which has since been purchased from the owner of the intermediate tract. He showed the hole in the rock as the landmark of a right, not as the evidence of an encumbrance. To say the least, neither interest preponderated; but it follows not that his declaration would have been competent between these parties, if it had involved him in a sacrifice. Could he have given'it in evidence against the plaintiff, had he continued to own the defendant’s property ? It will not be pretended that he could; yet the defendant stands exactly in his place. But as it was not shown that he considered his interest in the water-power of the upper tract to be the preponderating one, it is independently clear that his declarations were not evidence to affect the interest of his successor in the lower one.
Judgment affirmed.