The Chancellor.
If the circuit judge was correct in the conclusion at which he arrived as to the rights of these parties, there can be no reasonable doubt that this was a proper case for the interference of a court of equity to protect those rights. The complainants and those under whom they claimed were, and for a long time had been the owners of several very valuable mills, which depended upon the waters of the Great Pond for support a considerable portion of the year. They had also for a long period of time enjoyed the use of the water in a particular manner; and upon which use the principal value of their mill property depended. Under such circumstances the defendant attempted to control the use of the wa[601] ter in such a manner as to prevent the rimning of the mills; which attempt, if persisted in, would in time destroy the whole of this valuable property. To establish their rights at law, each of these several mill owners would be compelled to bring a separate suit against the defendant; leaving their mills to stand still in the mean time. And even this multiplicity of suits would afford them no adequate remedy for their continually accruing damages during the suspension of their rights. This is a sufficient answer to the objection that was made in the court below, and which is again repeated here, that the complainants bill should have been dismissed, with costs, because they had not established their right at law previous to the commencement of this suit.
It is said, however, that the judge, in the court below, should not have decided the question of right himself, but should have awarded a feigned -issue for that purpose. As' the right of the complainants was denied by the answer of the defendant, I am inclined to think that if the defendant on the hearing of the cause in the court below had asked for an issue, or a trial at law, to settle the question of right between the parties previous to the making of a final decree, that such request should have been granted. It appears, however, by a reference to the points made upon that hearing, that the defendant did not then ask for an issue; and the question is raised for the first time here. In a recent case which was before me on appeal from the late equity court of the eighth circuit,(a) I came to the conclusion that if a party did not think proper to ask for an issue in the court below, iu a case in which there was no positive rule of law requiring such issue, that he could not, upon appeal, claim to have the decree reversed merely on the ground that it was a proper case for an issue.
It seems to be unnecessary in this case to trace the several titles to the outlet farm, in connection with the ownership of the mills below. Previous to 1790 George Clinton appears to have been the owner of mills upon the Quassaick creek ; and he probably purchased the outlet farm for the purpose of [602] procuring water for those mills. In 1790 he conveyed a pari of his mills below to H. Walsh, and probably he parted with the residue before he conveyed the outlet farm to Walsh and Byrne in October, 1793. By the several conveyances which were executed in May, 1797, between Byrne, Walsh, Niven and Van Duzer, the legal title to the outlet farm, except the outlet itself and twenty-five feet on each side thereof, was-vested in Byrne and Van Duzer; and afterwards passed to H. Walsh, under the foreclosure of the mortgage to Clinton. The legal title to the outlet and the twenty-five feet on each side thereof, subsequent to the 23d of May, 1797, was in Walsh, Byrne, Niven and Van Duzer, in equal shares. And it was to remain in common among their heirs and assigns for ever, for the purpose of drawing off the waters of the pond as might be found necessary for the common interest; and was not to be appropriated to any other use. The one fourth of this reserved property passed to Joshua Byrne, by the will of his father, and is now vested in the complainants Trimble and Dubois, under the deed of October, 1824. Van Duzer’s share has been conveyed to the complainants J. & C. Hal-stead, since the commencement of this suit.. And Niven’s share probably remains in him, if he is still alive ; and if he is not, it must have descended to Iris heirs, as there is no evidence that he ever has conveyed it. The other fourth of this reservation remained in H. Walsh at the time of his conveyance to Gilbert Jones, in April, 1802. And the legal title therein passed to- Jones, under that conveyance; subject to the proviso to that deed, executed by Jones at the same time, and thus made a part thereof. The right thus acquired by Jones, being the whole of the outlet farm, with the exception of three fourths of the outlet and twenty-five feet on each side thereof, subject to the reserved rights of the former owners and then-assigns, passed to the three Belknaps under the administrator’s deed in April, 1809 ; and the whole, or a part thereof, is now vested in the appellant under the title thus acquired. The proviso annexed to the deed to Jones and endorsed thereon, which as it was executed at the same time must be considered as a part of that deed, is as follows: “ Provided always, and it is the true intent and meaning of the above nam[603] ed Hugh Walsh and Gilbert Jones, that it shall be lawful to and for Daniel Niven and Hugh Walsh, their and each of their heirs and assigns at all times to dig, widen and deepen the present water course into the pond as far as needful, and from the said pond or lake in this indenture mentioned to the floor of the floom of the grist mill and saw mill of the said Gilbert-Jones so deep as to be on a water level from said floor to the said-pond ; and also to have the liberty and privilege in a scarce time of water to hoist the gates at the said pond, and let the water run at any time after it shall have been shut up for more than twelve hours to the damage of the said Hugh Walsh and Daniel Niven, or either of them, their, or either of their heirs and assigns ; and to keep the same open after every •such shutting in a scarce time, also twelve hours for the accommodation of the mills of the said Daniel Niven and Hugh Walsh. In witness,” &c.
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The Chancellor.
If the circuit judge was correct in the conclusion at which he arrived as to the rights of these parties, there can be no reasonable doubt that this was a proper case for the interference of a court of equity to protect those rights. The complainants and those under whom they claimed were, and for a long time had been the owners of several very valuable mills, which depended upon the waters of the Great Pond for support a considerable portion of the year. They had also for a long period of time enjoyed the use of the water in a particular manner; and upon which use the principal value of their mill property depended. Under such circumstances the defendant attempted to control the use of the wa[601] ter in such a manner as to prevent the rimning of the mills; which attempt, if persisted in, would in time destroy the whole of this valuable property. To establish their rights at law, each of these several mill owners would be compelled to bring a separate suit against the defendant; leaving their mills to stand still in the mean time. And even this multiplicity of suits would afford them no adequate remedy for their continually accruing damages during the suspension of their rights. This is a sufficient answer to the objection that was made in the court below, and which is again repeated here, that the complainants bill should have been dismissed, with costs, because they had not established their right at law previous to the commencement of this suit.
It is said, however, that the judge, in the court below, should not have decided the question of right himself, but should have awarded a feigned -issue for that purpose. As' the right of the complainants was denied by the answer of the defendant, I am inclined to think that if the defendant on the hearing of the cause in the court below had asked for an issue, or a trial at law, to settle the question of right between the parties previous to the making of a final decree, that such request should have been granted. It appears, however, by a reference to the points made upon that hearing, that the defendant did not then ask for an issue; and the question is raised for the first time here. In a recent case which was before me on appeal from the late equity court of the eighth circuit,(a) I came to the conclusion that if a party did not think proper to ask for an issue in the court below, iu a case in which there was no positive rule of law requiring such issue, that he could not, upon appeal, claim to have the decree reversed merely on the ground that it was a proper case for an issue.
It seems to be unnecessary in this case to trace the several titles to the outlet farm, in connection with the ownership of the mills below. Previous to 1790 George Clinton appears to have been the owner of mills upon the Quassaick creek ; and he probably purchased the outlet farm for the purpose of [602] procuring water for those mills. In 1790 he conveyed a pari of his mills below to H. Walsh, and probably he parted with the residue before he conveyed the outlet farm to Walsh and Byrne in October, 1793. By the several conveyances which were executed in May, 1797, between Byrne, Walsh, Niven and Van Duzer, the legal title to the outlet farm, except the outlet itself and twenty-five feet on each side thereof, was-vested in Byrne and Van Duzer; and afterwards passed to H. Walsh, under the foreclosure of the mortgage to Clinton. The legal title to the outlet and the twenty-five feet on each side thereof, subsequent to the 23d of May, 1797, was in Walsh, Byrne, Niven and Van Duzer, in equal shares. And it was to remain in common among their heirs and assigns for ever, for the purpose of drawing off the waters of the pond as might be found necessary for the common interest; and was not to be appropriated to any other use. The one fourth of this reserved property passed to Joshua Byrne, by the will of his father, and is now vested in the complainants Trimble and Dubois, under the deed of October, 1824. Van Duzer’s share has been conveyed to the complainants J. & C. Hal-stead, since the commencement of this suit.. And Niven’s share probably remains in him, if he is still alive ; and if he is not, it must have descended to Iris heirs, as there is no evidence that he ever has conveyed it. The other fourth of this reservation remained in H. Walsh at the time of his conveyance to Gilbert Jones, in April, 1802. And the legal title therein passed to- Jones, under that conveyance; subject to the proviso to that deed, executed by Jones at the same time, and thus made a part thereof. The right thus acquired by Jones, being the whole of the outlet farm, with the exception of three fourths of the outlet and twenty-five feet on each side thereof, subject to the reserved rights of the former owners and then-assigns, passed to the three Belknaps under the administrator’s deed in April, 1809 ; and the whole, or a part thereof, is now vested in the appellant under the title thus acquired. The proviso annexed to the deed to Jones and endorsed thereon, which as it was executed at the same time must be considered as a part of that deed, is as follows: “ Provided always, and it is the true intent and meaning of the above nam[603] ed Hugh Walsh and Gilbert Jones, that it shall be lawful to and for Daniel Niven and Hugh Walsh, their and each of their heirs and assigns at all times to dig, widen and deepen the present water course into the pond as far as needful, and from the said pond or lake in this indenture mentioned to the floor of the floom of the grist mill and saw mill of the said Gilbert-Jones so deep as to be on a water level from said floor to the said-pond ; and also to have the liberty and privilege in a scarce time of water to hoist the gates at the said pond, and let the water run at any time after it shall have been shut up for more than twelve hours to the damage of the said Hugh Walsh and Daniel Niven, or either of them, their, or either of their heirs and assigns ; and to keep the same open after every •such shutting in a scarce time, also twelve hours for the accommodation of the mills of the said Daniel Niven and Hugh Walsh. In witness,” &c.
From this examination of the legal titles it is evident that the persons in whom the legal title to the outlet was vested, from time to time, previous to the conveyance from Walsh to Gilbert Jones in 1803, and who were also owners of mills on the stream below, had reserved the common use of the water of the Great Pond to be kept and let out, from time to time, as it might be wanted in seasons of drought, for the benefit of their mills below. And although Hugh Walsh, and those claiming under him by subsequent conveyances, might be bound by the new arrangement as to the use of the water, made between him and Jones in 1803, that arrangement could not bind others who had acquired rights under the arrangement of 1797. Putting the question in this case therefore; upon the strict legal title, as it is established by the different ,! conveyances, most of these complainants are entitled to the common use of the waters, for the benefit of their mills below, to be let out from the dam at such times and in such quantities as may be most conducive to the interests of all. Under such circumstances it would be the duty of a court of equity so to regulate the common use of the water as to preserve the rights of each. In the present situation of the several milling establishments on this stream I do not understand that there [604] could be any difficulty, whatever; as what would be beneficial to one mill owner would necessarily be beneficial to all the rest.
I think, however, this case was properly put by the court below upon another principle, and which is applicable to all the complainants, as mill owners on this stream below the pond farm. The conveyance from Walsh to G. Jones, which professed to regulate the use of the water in a particular manner, was given twenty-two years before the appellant acquired any title to the outlet farm; and there does not appear to have been any use of the water during that period corresponding with the arrangement then entered into between Jones and Walsh. On the contrary the evidence establishes the fact, that, both before and after the conveyance to Jones, all the mill owners below, who had an interest in damming up these waters and preserving them for a time of drought and then letting them out as they were wanted for the use of their mills, had enjoyed that right uninterruptedly; and substantially'in the same manner as is provided for in the decree of the equity court. It was supposed by the counsel for the appellant that the testimony of D. Belknap and the Gardiners was. wholly inconsistent with the complainants’ right to use the water as contemplated in the decree. But as I understand that testimony it is calculated to strengthen the presumption in favor of that right, and to show an exercise of a right of using these waters in a different manner from the natural discharge thereof from the Great Pond. The right claimed by the complainants is to keep the waters of the pond dammed up to a certain height until the stream below becomes too low to propel their machinery, and then to let them out as they are wanted. The Great Pond is not the only source from which water is supplied for the mills below. But the mills to which the testimony of these witnesses related were situated above the other streams which fall into the Quassaick creek, and which supply the complainants’ mills a certain portion of the year. The mills above, which derived their supply from the waters of the pond alone, would of course be deprived of water, by reason of the dam, while the mills below were supplied from these other sources. It was therefore for the interest of the mill owners below to keep the waters of the pond shut up until after the [605] other sources had failed. And it appears from the testimony of these three witnesses that the owners of the mills below, who had the control of the outlet, exercised the power of keeping the waters thus dammed up, in defiance of the claims of the two mill owners who would have been more benefitted by the natural flow of the stream. The fact that the owners of those two mills which have now ceased to exist, asked as a favor that the water might be permitted to flow to their mills while the owners below were preserving it for a season of greater drought, is not therefore inconsistent with the right claimed by these complainants.
The learned commentator on American law lays it down as the established doctrine, both here and in England, that the exclusive enjoyment of water in a particular way for twenty years, without interruption, becomes an adverse enjoyment sufficient to raise a presumption of title, as against a right in any other person which might have been, but was not asserted. Neither is it necessary that the person claiming this prescriptive right to the use of water should have used it in the same precise manner during the twenty years; or that it should have been used to propel the same machinery. All that the law requires is that the mode or manner of using the water should not have been materially varied to the prejudice of others. (See 3 Kent's Comm. 2d ed. 442.) I apprehend also that this rule must be reciprocal; and that a proprietor at the head of a stream who has changed the natural flow of the waters, and has continued such change for more than twenty-years, cannot afterwards be permitted to restore it to its natural state, when it will have the effect to destroy the mills of other proprietors below, which have been erected in reference to such change in the natural flow of the stream.
The appellant had no claim to be excused from the payment of costs. He was not the owner of any mill in which the right to use the water came in conflict with the rights of the complainants as settled by the decree. I cannot believe he had any intention of re-occupying the mill scite on the outlet farm. He probably supposed himself in the possession -of a legal right to destroy the complainants’ mills, by interrupt[606] ing the use of the water; and he hoped to be able to avail himself of iLin-such a manner as to make money out of their necessities. He interrupted them in the enjoyment of their rights when it could not benefit him in any other way than by compelling them to buy their peace. Under such circumstances, if a party mistakes his legal rights, he has no particular claim to the favor of the court/ The decree of the equity court is therefore affirmed, with costs.