another dam erected at some distance below, to the injury of the owner of the land on the opposite side of the river. No occupation short of a period of twenty years can be evidence of such an adverse right.1 § 352. Where each of two persons having equal rights to a water privilege of sufficient power to drive but one mill, has recently erected a mill on his own land, neither acquires a priority of right, by first erecting his mill; but each has an equal right to the use of the water therefor, and neither can maintain an action founded in tort for the use of the water thus owned in common, before their rights became several by partition.2 5. Right to overflow or to cause Backwater as derived from Special Grants and Reservations. § 353. The right to overflow land above and below, or to set back the water upon an upper mill privilege may be conferred by a special grant. When thus acquired (like the right thus acquired of diverting or detaining the water) it is an incorporeal hereditament of the class of easements, the nature, creation, and extinguishment of which, and also the extent of the easement conferred, as depending upon the terms of the grant, there has before been occasion carefully to consider. So also the right in question (like the 1 Lyford v. Odiorne, 9 N. Hamp. R. 502. 2 Bailey v. Rust, 3 Shepl. (Me.) R. 440. 3 See Ante, Chap. V. 4 As to the nature and extent of easements, Ante, § 141-144; as to the creation of, Ante, § 168-173; as to extinguishment of, by unity of possession, Ante, § 191-200; as to extinguishment of, by parol license and acts in pais, Ante, § 240 – 253. right of diverting water) may be excepted and reserved as an easement in a conveyance of the land.1 It is now proposed to arrange the cases in which the rules and principles laid down in former chapters respecting the particular use of the water as it passes, derived by particular conveyances and contracts, have been applied directly to overflowing land and causing backwater. : § 354. The following case, in relation to a right of flowing, by virtue of a grant, was adjudged in Connecticut - Where A and B were joint tenants of a grist-mill and dam, and the land on which they were erected; the parties, in 1788, made a division in severalty, by a deed of partition, A taking one third, and B two thirds. In 1791, B erected a saw-mill on land owned by him in severalty, which was operated by water taken by the grist-mill pond by means of a trough inserted in the dam. In 1797, A and B submitted to arbitrators a controversy between them relating to the overflowing of the land of A, caused by the dam erected for the benefit of the grist-mill ; whereupon it was awarded, that the dam should remain as it then was, and if it should in a common season cause the water to overflow A's land more than it did at the time of the partition, B should pay damages. By a writing indorsed on this award in 1799, A and B mutually agreed to abide by it. In 1807, B by a quitclaim deed conveyed to A all B's right and title in and to the grist-mill, together with the privileges thereto belonging. In an action subse 1 As to exceptions and reservations, Ante, § 173–191; Covenants running with the land, Ante, § 255–273. quently brought by A against B for keeping up the dam, and thereby overflowing the adjoining land of A, the defence set up was a right in B to the use of the water in the manner stated in the declaration, for the purpose of working his saw-mill. It was held by the Court, that B had no such right by virtue of the documents referred to.1 § 355. In respect to the right to flow by virtue of an unlimited grant at the first settlement of the country, it has been decided in Connecticut, that where, under such grant, a person claiming under those who have elected to flow, has for a great length of time flowed to a certain extent, such extent will determine the extent of the grant; and the dam cannot consequently be raised any higher. The rule is, that where an interest vests immediately by the force of the grant, election may be made by the heirs; and so an election coupled with an interest is descendible. But if nothing passed or vested in the grantee before his election, it should be made during the life of the parties. In Vandenburgh v. Van Bergen, the defendant, under a deed for certain lands in Coxsackie (New York) Patent, with full liberty and license to erect and build a mill on any place on the river by that name, (with liberty of ground and stream of water,) claimed the right of overflowing the plaintiff's land, which was held by the grantor at the date of the defendant's deed; it was held, that though the grantee, in his ' Watrous v. Watrous, 3 Conn. R. 373. 21 Swift, Sys. 86. 3 Com. Dig. tit. "Election;" Jackson v. Van Buren, 13 Johns. (N. Y.) R. 525. ♦ Vandenburg v. Van Bergen, 13 Johns. (N. Y.) R. 212. lifetime, would have had a right to erect a mill on the river, and to have overflowed, so far as was reasonable and necessary, the land of the plaintiff adjacent to the river, which had been purchased from the defendant's grantor, subsequent to the date of his deed; yet, not having elected to erect the mill, in his lifetime, the right became extinct at his death.1 § 356. Where the proprietors of a township, in order to encourage its settlement, voted to give lands and a sum of money to any persons who would build mills on one of the lots designated, and maintain them for ten years, which was done; this was held to give no right to flow the lands of any individual proprietor holden in severalty at the time of the vote, though more than forty years had elapsed since the mills were built, without any claim of damage. It was urged, that for a series of years prior to the division and allotment of the proprietary lands, there was an understanding among all concerned, that the mill-lot should be reserved for the purpose of having mills erected thereon for general convenience; and that, therefore, when the division was made, each owner or assignee of a lot must be considered as assenting to take his land subject to the right, in the owners or occupants of the mill-lot, to flow the adjoining lands, without any compensation. But the Court said, "Such a construction would contradict the record; it would be changing a vote or conveyance, absolute in its terms, into a conditional one; it would be making a contract, instead of giving a construction to one already made. If a man's title, founded on deed or record, could be ' And see Thompson v. Gregory, 4 Johns. (N. Y.) R. 80. varied and impaired in this manner by parol proof, or by the magic of construction, without any proof at all, titles would be exposed to a thousand dangers, and thrown into confusion. In early times, the flowing of the lands in question, as in many other cases, was little or no injury to the owner; but as the lands have become more valuable, that injury may become matter of importance; and we do not perceive why such an injury should not furnish as fair a claim for the damage which has actually been sustained, as in cases where the flowing has been occasioned by more recent erections." 1 § 357. In New York, it has been held, that a grant of land by the State, in which there is a mill-site, but no mill or dam, does not authorize the grantee to erect a dam thereon so as to flow adjoining lands subsequently purchased of the State by others, unless that right be expressly provided for in the grant; and it is so, although the subsequent purchaser acquires a title after the erection of the dam, under letters-patent referring to a map which represents his land as flowed to the extent and in the manner claimed.2 § 358. By a grant of a mill, "with the appurtenances," the dam and all privileges of flowing which are necessary to the full enjoyment of the mill and head of water will pass.3 The doctrine on this subject, as applied to the diversion and detention of the water, is applicable likewise to causing it to flow back on the land above; and it has been expressly held, that, as the grant of a mill not only carries the head of water 1 Stevens v. Morse, 5 Greenl. (Me.) R. 26. |