him. If the conveyance to the owner of the clothingmill gave him the right to enter upon the land embraced in the deed to the other grantee, it was to repair or rebuild the flume there existing, and not to erect one of different dimensions; nor was he authorized to erect one drawing more water, even if such an one might be more advantageous, and if the grantee of the grist and saw-mill, for the time being, forbore to use the water.1 § 149 a. Under a reservation in a grant of lands and water privileges of sufficient water to propel certain specified machinery, the grantor is entitled to the use of the water for any purpose not requiring a greater power than is reserved. Thus, where the owner of lands upon a mill stream granted a portion thereof, together with water sufficient to operate a saw-mill at all times, when there should be more than enough to drive a grist-mill with three run of stones, and certain other specified machinery; the Court held, that the grantor in the deed and those holding under him were not restricted in the use of the water to the particular objects mentioned in the deed, but might use the quantity reserved for any other purpose. This construction is supported 2 1 Dewey v. Bellows, 9 N. Hamp. R. 282. The statute of New Hampshire, relative to the repair of mills, dams, &c., owned by tenants in common, does not, on the neglect of one tenant, authorize another to erect a new mill or dam substantially different from the former, and to call on his co-tenant, under an appraisal, for contribution. Bellows v. Dewey, 9 N. Hamp. R. 278. 2 Cromwell v. Selden, 3 Comst. (N. Y.) R. 253. In Luttrell's case, 4 Coke, R. 86, the plaintiff alleged that he was seised in fee of two old and ruinous fulling-mills, to which from time immemorial, magna pars aquæ cujusdum rivuli ran from a place called "Head Wear," that afterwards he had pulled down the fulling-mills and erected two mills to grind corn, and he complained that the defendant had diverted the water from these mills. by Bigelow v. Battel,' in which case the plaintiffs being the owners of the entire water power of Charles River, at Natick, granted to the defendants the privilege of taking from their dam a specified quantity of water, "except when the quantity of water is so small as not to be sufficient to carry plaintiff's grist-mill, and a cotton factory which may be erected, with no more than five thousand spindles." Although it was no part of the contract that the plaintiffs should have a right to the water for the use of a paper-mill, it was held, that the right reserved did not limit the use of the water to a cotton factory; but that the true intent of the reservation was that the water should, at all times, be left sufficient to carry five thousand spindles. § 149 b. Upon the argument in the above case of The plaintiff had judgment, and it was assigned for error, that by breaking and abating the old fulling-mills, and building new mills of another nature, the plaintiff had destroyed the prescription, and could not prescribe to have any watercourse to grist-mills. If a man grant me a watercourse to my fulling-mills, I cannot, it is said, convert them to corn-mills, nec e contra. For prescription in such case shall be intended to commence by grant, and it might be more beneficial to him who made the original grant, and to others who had his estate, to have them fulling-mills rather than corn-mills. Perhaps they have corn-mills so near that the building of corn-mills would be prejudicial to them, and it would be against reason to extend a grant or prescription to have a watercourse to fulling-mills to corn-mills, which is not within the purport of the grant or prescription. But it was resolved, that the prescription did extend to the new grist-mills; that the plaintiff might alter the mill into the nature of what mill he pleased, provided always, that no prejudice should thereby arise by diverting or stopping the water, as it was before. And see post, § 226, 227. Just so at the present day; lapse of time, increase of population, and improvements in mechanics, must necessarily give rise to changes, and these may occasion a necessity to change the mode in which the parties have been accustomed to divide water power to which they are respectively entitled, between them. Cress v. Varney, 5 Harris, (Penn.) R. 496. 1 Bigelow v. Battel, 15 Mass. R. 313. Cromwell v. Selden,1 the defendant's counsel relied on Ashley v. Pease, and Benedict v. Strong, as favoring an opposite construction. "It is true," say the Court, "that in both these cases, it was held that the grantee was not only limited in the quantity of water which he had a right to use, but also in the manner of using it. But each of these cases is distinguishable from that of Cromwell v. Selden. In Ashley v. Pease, the plaintiff being owner of an entire water privilege, granted and conveyed to the defendant's ancestor a fulling-mill, and covenanted with him that when there should be a sufficiency of water to carry and supply the uses of all the mills then standing, or which might thereafter be standing in their place, on the dam, he would suffer and permit him to draw from the flume "so much water as might be necessary to carry and supply the fulling-mill then standing, or which might thereafter stand upon the lot he had granted;" but when there was not a sufficiency of water for the purposes and uses aforesaid, then he was to draw water for the use of the said fulling-mill or mills, twelve hours successively in the twenty-four, and no more. The grantee also covenanted in the same instrument, that he would never use or occupy the fulling-mill, nor any other mill or building which might thereafter stand in the same place, so as to interfere with or obstruct the going or working of the plaintiff's saw-mill, or any other mill or building which the plaintiff might erect in the same place. The defendant erected a carding machine in the same building occupied as a fulling-mill, and used the water for the pur 1 Cromwell v. Selden, ub. sup. 2 Ashley v. Pease, 18 Pick. (Mass.) R. 268. pose of running both, but not both at the same time. The Court held that it was manifest from the general tenor of the contract, that it was the intention of the parties that the grant should be limited to the use of the water for driving the fulling-mill, and that the use of it for a carding machine was unauthorized. That this is what the parties intended, the Court say is confirmed by the grantee's covenant not to obstruct or interfere with the plaintiff's mills, by using and diminishing the water power except to carry and supply the fullingmill." § 149 c. In Strong v. Benedict,' the grant was of four acres of land, "with the privilege of building a mill for the purpose of fulling cloth, together with the privilege of drawing so much water as should be necessary to carry a good well-built overshot fulling-mill, at any time when the grantee shall have occasion to use the said fulling-mill." The grantee was to have so much water as was necessary when he should have occasion to run the fulling-mill. "It would seem, therefore," say the Court, "as if there was a limitation of the use as well as of the quantity. But without expressing a definitive opinion on this subject, it is clear, from the situation and condition of the parties, and other collateral facts known to them at the time, and which may properly be recurred to for the purpose of ascertaining their mutual intentions, that it was intended that the use of the water as well as the quantity, should be restricted." Thus it will be seen, say the Court, in Cromwell v. Selden,2 that in the first of these cases 1 Strong v. Benedict, ub. sup. 2 Ub.sub. (Ashley v. Pease) the covenant of the grantee himself amounted to an express prohibition of the use of the water for any other purpose than that specified in the grant; and in the other, although by the terms of the grant the defendant was only entitled to the use of the water when he had occasion to use the fulling-mill,' the Court refrain from expressing 'a definitive opinion' upon the construction of the terms of the grant, but place their decision upon collateral facts known to the parties at the time, clearly indicating that it was their mutual intention that the water granted should be used for a particular object only." § 149 d. Lands were conveyed with a reservation in the following words: "The said parties of the first part, do hereby reserve to themselves and to their heirs and assigns, one acre and a half of land, out of the above described premises at the south-east corner of lot No. 11, and on which the tannery is erected; and running northwardly with the highway, so as not to exceed twenty-four rods in the rear; and the said parties of the first part as aforesaid, do also reserve to themselves and their use, a certain well and waterworks laid down for the purpose of supplying the tannery aforesaid with water." The construction given to this clause by the New York Court of Appeals was, that the reservation of the well and waterworks, was unlimited in the uses to which the water might be applied, and was not restricted to the purpose of a mere tannery, and that the right would pass to the grantee of the party making the reservation.' § 149 e. The decision in the case of Rogers v. Ban 1 Borst v. Empie, 1 Seld. (N. Y.) R. 33. |