upon their right so to divert and withdraw the water, by means of their canal, upon the ground, that it was only a small part (about one fourth) of the water, to which, as mill owners on the lower dam, they were entitled. It was held that both parties were entitled per my et per tout, to their proportions of the whole stream, on its arrival at the dam; and that neither party could divert any portion of it, though the portion diverted was a less quantity than he would naturally use at his mill on the dam; and that it was no answer to such a violation of right by one party, that the other had increased the quantity of water in the stream by means of a reservoir higher up. § 102. The water, a foot or more in depth, that runs over a dam, is not to be considered surplus water, and as of no value; for the head, and of course the water power, is thereby increased. And, if a right is granted by a riparian proprietor to abut a mill-dam on his land, extending from the opposite side of the river, the grantee has, prima facie, a right to all the water-power created by the erection of the dam; and the burden of proof is on the grantor to show that the grant was made with restrictions in respect to the use of the water by the grantee.1 § 103. It appeared on the trial, in Curtis v. Jackson, in Massachusetts,2 that the water of Charles River between Newton and Needham, at the place where the plaintiff's mill was situated, was divided by a small island or rock, and that part of the water passed on the Needham side to a certain mill of the defendant; 1 Bliss v. Rice, 17 Pick. (Mass.) R. 23. and the other part passed on the Newton side to the mill of the plaintiff, and to certain other mills on the same side of the river, there being but one dam for all the mills. On the Needham side there was a sand-bank above the defendant's mill; and the defendant having previously dug out a channel between that bank and the Needham shore, down to his mill, placed a dam or pile of stones from the upper end of the said bank to the Newton shore, so as to turn nearly all the water through the above-mentioned new channel to his own mill; and for this injury the action was brought. The defendant justified by endeavoring to prove a right by prescription of using the water of the stream in exclusion of all others, when there was not enough for the mills on both sides. But the Court held, that where there are mills on both sides of a watercourse, if the mill owner on one side has the exclusive right to use the whole of the water whenever there is not enough for the mills on both sides, he is not authorized to erect a permanent dam to turn the water to his mill; but that he must rely on his legal remedy if his right be infringed by the mill owners on the other side. § 104. In Arthur v. Case, in the Court of Chancery of New York, it appeared that the complainants were the owners of certain mills and mill privileges on the north side of the outlet of Lake George; and that the defendants owned mills and mill privileges on the south side of the same stream or outlet. In the middle of the outlet there was an island, and the main current of the stream ran naturally on the north side of the island. A dam extended from the island to the south 1 Arthur v. Case, 1 Paige, (N. Y.) Ch. R. 447. shore on which the mills of the defendants were situate; and a similar dam ran from the island to the north shore by means of which the complainant's mills were supplied with water; but in dry seasons there was not water in the stream sufficient to supply all the mills. The defendants, claiming the right to have their mills first supplied, commenced building a dam from the island to strike the north shore some distance above the already established dam, the effect of which would be to deprive the mills of the complainants of water in dry seasons, and turn the whole stream to the south of the island. The complainants, having obtained an injunction to restrain the defendants from building this intended new dam, and, on coming in of the answer, a motion being made to dissolve the injunction, Chancellor WALWORTH held, that "where hydraulic works are erected on both banks of a private stream, if there is not sufficient water to afford a full supply for all, the owner on each side is entitled to an equal share of the water." Both parties, he said, were entitled to participate equally in the use of the water; and "if either party draws more than a fair proportion, or it is necessary to excavate in the bed of the river to give the defendants a due proportion, the manner of exercising the right, and the nature and extent of the excavation, must be settled under the direction of the Court, on the report of the master." § 105. It appeared in a case in New Hampshire, that a certain deed, under which the defendant claimed, purported to convey "the northerly half of the milldam" in dispute, and also the privilege of taking the water from any part of the said "northerly half of the mill-dam," for the use and benefit of the grantee and his heirs and assigns. Under this grant, the defendant contended for a right totally to destroy the north half of the mill-dam, or to draw water from it for his uses in any quantities, in any manner, or at any period of time. The plaintiff, on the contrary, contended, that every thing which passed under the grant was a right to use the north half of the mill-dam for the purposes to which mill-dams are usually devoted, without the legal power either to remove it, or permit decays so as to injure the plaintiff's enjoyment of the other half of the mill-dam. It was held by the Court that the deed passed the right to the use of one half of the water only, and, therefore, that an action would lie against the grantee for taking more than one half the water to the injury of the grantor. Mr. J. WOODBURY observed, "From the circumstances that when the deed was executed, the mills were situate on the northerly half of the dam, as well as on the south half, it is reasonable to presume that the northerly half was sold under an expectation it would be used to turn those mills, and not be altogether destroyed, or the gates removed so as to be tantamount to a total destruction of it for the purposes of a mill-dam for the mills situated on both halves." RICHARDSON, C. J., construed the law to be, that "a conveyance of one half of a dam, is a conveyance of a right to use one half of the water; the parties own the dam neither as tenants in common, or as joint tenants, but each has all the title in his several part. Of the head of water raised by the dam, they are, however, tenants in common; and, in such case, if one draws the water unreasonably to the injury of the other, case may be maintained for the injury.1 1 Runnels v. Bullen, 2 N. Hamp. R. 532. Where two own severally several parts of the same dam, there is an implied contract or covenant § 106. In a case in Massachusetts,' it appeared, that the plaintiffs, "and those under whom they claim, owned a stone saw-mill on the east side of Williams River, and had made use of the dam for more than twenty years. The defendant owned a fulling-mill on the west side of the river. On the 11th of July, 1827, the defendant, after making a temporary dam, took away an old floom on the west bank, and dug the dirt away for the purpose of putting in a new floom. This weakened the temporary dam in such a manner that the water pressed through it and undermined it; and to prevent the water from doing damage, the defendant tore off the flash-boards and hoisted the waste-gate of the dam, east of the centre of the river. The effect of this was, to deprive the plaintiffs of the use of their stone saw-mill wholly for two or three days, and partially for ten weeks. On the part of the defendant it was contended, that he had a common right in the dam with the plaintiff; and that he was not liable for the injury. He proved that, twenty-two years previous to the alleged trespass, one Curtis, under whom he claims, with certain persons under whom the plaintiffs claim, built the dam, and that the plaintiffs and the defendant between them, running with the land, that each shall keep in repair his portion of the dam, so long as he uses the water; and that as soon as one ceases to use the water, he shall permit the other to repair the whole. On that implied contract, the statute of New Hampshire of June 16, 1801, entitled "An Act relative to the repairs of Mills, &c.," is founded. Per Richardson, C. J., in Runnels v. Bullen, ub. sup. See Lapham v. Curtis, 5 Vermt. 371, in which it was held that it was the duty of each owner of a dam to use ordinary care and diligence in making repairs to it, so as to prevent injury being done to the other; and if he does not use ordinary care and diligence, he will be liable for all consequential damages to the other. 1 Boynton v. Rees, 9 Pick. (Mass.) R. 528. |