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a day for ten months, and that the water can be drawn down each dry season several feet without serious loss to the defendant; that during the years in which the mill has been operated, working the mill has never required the pond to be drawn down more than two feet.

LOGAN & SHATTUCK, for the piaintiff.
MITCHELL & Dolph, for the defendant.
UPTON, J.

The principal question in this case arises npon the construction of the deed from the defendant to Green, in determining what rights and privileges were conveyed.

If no reference had been made to the mill or dam, the language of the deed might be construed to convey a right to all the power afforded by the natural flow at all times. But reference in the deed to the defendant's mill-dain and wheel, confines the right to flow back the water to particular limits. And I think, upon the same principle and with equal certainty, the reference to defendant's inill and wheel limits the purchase, and reserves to the plaintiff rights that otherwise would have passed. The instrument, taken as a whole, shows the intention of the parties to have been, that the defendant should retain such right in the water as was necessary to a reasonable use of his mill. It is a pertinent matter, that the deed discloses on its face the intended use of the water by each party. What might or might not be a reasonable use of the water by the defendant may depend very much upon the purposes to which it is to be applied by those occupying below him, especially since that purpose is expressed in the deed. Thus, if the contemplated business below required that the plaintiff be constantly supplied with a small stream and there was no possibility of constructing reservoirs by the plaintiff to equalize the flow coming from the mill, the defendant might, in a time of scarcity, be obliged to desist from interrupting the flow, on the principle that one may not so use even his own property as to unreasonably discom mode others.

The words, “The right at all times to 11-e all the water which naturally flows below said mill,” if they stood alone, might be of doubtful construction, and the whole sentence in which they occur, taken independently of the rest of the instrument, might, without much violence or strictness, be construed to convey an absolute right to have the water flow at all seasons of the year and at all hours of the day, in the precise quantity it would have flowed in a state of nature.

But it is necessary to give consideration to all parts of the instrument, in order to ascertain what was really the intent of the parties: Marvin v. Stone, 2 Cow. 781. For this purpose, the surrounding circumstances within the knowledge of the parties at the time should be considered: Blossom v. Griffin, 13 N. Y. 569. It will be presumed that the parties were contracting with knowledge of the situation of the property; and it is evident that they did not intend to abandon the advantages derived from using the lake as a reservoir. The terms of the contract exclude the idea that the defendant was expected to abandon the use of his mill; but it seems to have been contemplated that the defendant could and would so use his nuill that the flow of water below it would supply the requirements of the purchaser's business, whenever there was sufficient water. It is admitted that the plaintiff has a reservoir of sufficient capacity; that if, during each day, the defendant lets down snfficient water for the twenty-four hours, the plaintiff can retain and use it without being injured because of temporary interruption of the flow of the stream. Accordingly, if the defendant lets down water at regular intervals in quantities such as the plaintiff is entitled to, no harm can be done by the daily closing of the gates. But the plaintiff claims that by the words, “water which naturally flows,” the plaintiff became entitled to all the water that would have flowed there in a state of nature; that the defendant's ponding up the water may increase the evaporation and diminish the stream. I think that construction is not a necessary import of the words nised. There is something other than a state of nature contemplated and expressed when we add to the words, “the water which naturally flows,” the words, below the mill.There is a difference between a grant of the quantity of water that would flow in a state of nature” and “the quantity which naturally flows below a mill."

Had the defendant sold all the land he owned below “the foot of the wil” down to the Wallamet River, with all its liereditaments and appurtenances, I think the purchaser would have acquired all the rights that are conveyed by this deed. But in that case the purchaser would have taken subject to all the burdens and servitudes connected with the use of the grantor's mill.

“The purchaser of part of an estate takes it with the servitudes that are visibly attached at the time of the sale": Lampman v. Milks, 21 N. Y. 505.

But it seems too evident, from the terms of the contract, that the parties intended a continuation of the use of defendant's mill to admit of argunent. The purchaser evidently took the property subject to a right in the defendant to make such use of the lake as had been theretofore made, if not seriously detrimental to the purchaser.

And if there had been no relation of grantor and grantee, the owner of the lands above would have a right to construct a dam, and to make use of surplus water to till the pond when the detention would not work actual injury or damage to his neighbor. “The right to rise necessarily implies the right to dam and to detain tire water": Van Hoesen v. Coventry, 10 Barb. 520.

“While each proprietor has a right to detaiu the water as it passes through his land long enough for the proper and profitable enjoyment of it; he can only detain it. he can not divert it: Platt v. Johnson, 15 John. 213, 218.

He must not detain it, “unreasonably, or let it off in uniisual quantities to the annoyance of his neighbor": 3 Kent's Com. 440; Webb v. The Portland M. Co., 3 Sumner, 189.

What an unreasonable detention is, in general, a question of fact. I think it is not an unreasonable detention to fill the defendant's pond in the wet season with surplus water, that could not then be available to the plaintiff, and to discharge it in the dry season, in proper quantities, when its flow must necessarily be advantageous to the plaintiff. By unavoidable construction of the contract, the defendant has a right to use his mill, and the rule is that he must so use his property as not to injure others. He has a right at proper times to detain the surplus water by ponding the lake. I think he has by his deed limited himself to such times; and that he has no right to accumulate and retain water at times when it is needed for the use of plaintiff's works. I think he may at all times retain the water at the height at which it had been constantly retained, as indicated by the dam and flume up to the time of Green's purchase; namely, at the height of one foot above the surface of the lake; both because that was the condition of things at the time the purchase was made, and because it does not appear that such detention would make the flow of the streain, at any time of scarcity of water, materially less than it would have been had no dam been built. The plaintiff is entitled in low water to have sufficient water to drive the machinery, etc., mentioned in the deed, if the natural flow of the stream, together with surplus water used in running the mill, would produce so much, and if it would not, then so much as the natural flow of the stream would produce, and the defendant has no right to use his dam or gates as to

This amount of water slionld be supplied at such intervals or with such constancy as to enable the plaintiff, by means of his reservoir, to have the regular use of it.

Decree afterward affirined with amendment fixing the water line more accurately than it had been fixed below.

prevent this.

THE NEVADA WATER COMPANY v. POWELL ET AL.

a

(34 California, 109. Supreme Court, 1867.) Right to raise dam, as affected by rights of intervening claimants

above. Where a party has appropriated the waters of a stream for ditch purposes by means of a dam, and afterward the stream becomes so filled with tailings from workings above, that it becomes necessary to raise the dam to secure the water, it does not follow, that he has the right so to raise the dam because of such unforeseen changes in the

condition of the stream. Idem. If such further act of appropriation cause injury to intervening appro

priations, such intervening appropriations must be considered as prior thereto; the party attempting to raise such dam can not do so upon the ground of its being a necessity, in order to secure only the full extent

of his original appropriation. Idem. The appropriation carried with it the right to erect all works necer.

sary to the enjoyment of the water; but that appropriation being ccmplete and acted on, subsequent locations could be made by others based upon the extent of that established appropriation, “unless there was something which manifested a further right."

Smith, 7 Cal. 148; Post RIPARIAN RIGHTS.

1 Sims v.

a

Extent of appropriation-Question for jury. The extent of the right ac

quired by an act of appropriation, or the extent to which subsequent acts

of appropriation are subordinate to it, is a question of fact for the jury. Surplus water-Subsequent appropriators. Subsequent locators may

appropriate the surplus waters of a stream left after a prior appropriation, and when the rights of such subsequent appropriators once attach, the prior appropriator can not encroach upon them by extending his appropriation; nor can he enlarge his ditch or dam so as to retain what he originally appropriated, if through intervening accidents (as the filling of the stream-bed with tailings) such enlargement would interfere with such intervening rights. In such a case when a right has once vested in the subsequent appropriator, the prior appropriator would be no more justified in extending his claim, or changing the means of appropr'ation, to the prejudice of the second appropriator, than the latter would be in encroaching upon the prior rights of the first.

Appeal from the District Court, Fourteenth Judicial District, Nevada County.

In the court below the plaintiff had judgment. The defendants moved for a new trial, which was denied by the court, and from the order denying said motion and the judgment the defendants appealed.

The following instructions were given by the court to the jury, at plaintiff's request, to which the detendant at the time duly excepted, to wit:

"1. If the jury believe, from the evidence, that the right of plaintiff to use and divert the waters of Shady Creek is prior in date to the rights of defendants to work the Wilder Claims, such prior right carries with it the right to construct such works as are absolutely necessary to the full enjoyment of the right.

“2. If the plaintiff, or those under whom it claims title, located the Shady Creek Ditch, and diverted any portion of the waters of Shady Creek therein, prior to the location of the Wilder Claims by the defendants, or those under whom they claim, and subsequently, by reason of obstructions caused by tailings coming down the stream from mining claims above, it became necessary for the plaintiff to raise their head dam to its present height, in order to divert the said water into their ditch, then the plaintiff had a right to so raise its head dain, notwithstanding any damage caused thereby to the Wilder Claims.

Smith v. O'Hara, 1 M. R. 671.

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