When a claimant of an aqueduct title uses the water without an actual promise, express or implied, to pay for the use, assumpsit on the fiction of a promise implied by law is not an appropriate form of action for settling the disputed title.
DOE, C. J.
No promise, express or implied, was in fact made by the defendant to pay for his use of the water. The water-right claimed by him is also claimed by the plaintiff in interest; and the suit is brought to settle the disputed aqueduct title. The fiction of a promise implied by law contrary to the fact may be invented and used, for the sake of the remedy, to enforce the performance of a legal duty. Sceva v. True, 53 N.H. 627; Kelley v. Davis, 49 N.H. 187. The law does not leave this disputed title unsettled for want of all adequate method of procedure, but no fiction is required by adequacy or convenience of the plaintiff's remedy. Assumpsit does not lie. Barron v. Marsh [ante 107].
Case discharged.
BLODGETT, J., did not sit: the others concurred.