. The opinion of the Court was delivered at a subsequent term, by
Parris J.
As the jury have found that the lands of the Proprietors were divided in 1740, and that no mill had previously been erected by them, or under their authority, there were no facts in the case justifying the first and second requests of the defendants’ counsel. The Court are to charge the jury upon the law applicable only to the facts proved, but are not bound to answer abstract questions not' arising in the case on trial. If the mills had been erected by the Proprietors previous to the division of their common property, so that the mill site and land flowed had not at that time become the separate property of any individual, the request of the defendants’ counsel would have been pertinent, and it would have been the duty of the Court to have given the law, arising from those facts, to the jury.
The third request is, “ that the Court would charge, that if “ the dam, and mills and land, and No. 49, were owned by the “ same person or persons, ’and such owners conveyed the dam, “ and mills, and land and privileges and appurtenances, and af- “ terw.ards conveyed No. 49, the grantee of No. 49, would have “ on right to claim damages for keeping up the water by the dam, “ as it had been before the conveyance of No. 49.” The facts [233]*233are that the mills stand on a stream running southwardly or southwestwardly from Neguassctt pond in the town of Woolwich; that lot numbered 49, which is now owned by the complainant, and on which he alleges the injury to have accrued by the flowing, is bounded eastwardly by the pond, or includes a part of the pond ; — that the mill stands below No. 49 on the adjoining lot, and that this mill site was occupied as such, in 1734, and has been so occupied ever since, and that the mill dam has not been raised higher than it was formerly. The respondent offered proof tending to shew, that upwards of fifty years ago, the mill site, mill and privilege, and lot No. 49 were owned by the same person, and that such person conveyed the dam and mill, and land and privileges and appurtenances, still retaining No. 49, and that he afterwards conveyed No. 49 to a different grantee. Upon this proof, the respondent moved for the instructions contained in his third request. If these instructions were properly withheld, or if they were substantially given, there is no ground for disturbing the verdict on this point. — Were they properly withheld ?
What would pass by the terms dam, mills, privileges and appurtenances ? It is a principle of law, that where a thing is granted, the grant implies a right to all the means of enjoying it, so far as the grantor was possessed of those means. 1 Sound. 322, 323. — The use of any thing being granted, all is granted necessary to enjoy such use ; and in the grant of a thing, what is necessary for the obtaining thereof is included. Co. Litt. 56. Where the principal thing is granted, the incident shall pass. Co. Litt. 152.— Com. Dig. Grant, E. 9. — In the construction of a grant, the Court will take into consideration the object which the parties had in view, and the nature of the subject matter of the grant.
From the proof reported in the case, it appears that the meadow, now owned by the complainant, has been flowed ever since the first mills were erected on the site where the respóndanos mills now stand, which was, probably more than one hundred years ago ; — that the oldest witness examined, who could recollect seventy-three years ago, knew that, at that time, there was a dam there high enough to raise a sufficient head of water [234]*234to carry two saw mills and a grist mill well, and that the dam has always been high enough to flow the meadow owned by the complainant; — that the meadow was flat and low and always flowed, and that a dam thirty inches in height would flow it. — This has been the situation of the mill and dam ever since the site was first occupied, and of course it was thus when it belonged to the same person who owned the meadow flowed, being part of No. 49. While in his possession, the dam was kept up to the same height as it now is, and consequently, the meadow must have been flowed as it now is. — He, being the owner of the meadow as well as the dam, had a right to flow without being answerable for damages.
The mill could be of no use without a head of water sufficient for its operation, and that head could not be supplied, without continuing such a dam as would cause the meadow to be overflowed. — It was indispensably necessary to the enjoyment of the principal thing granted, and if, at the time of ■ the conveyance of the mill and its privileges and appurtenances, the grantor was the owner of all the land flowed, we think that both upon principle and authority, the grantee acquired a right to continue the dam so as to raise the same head of water'as the grantor had been accustomed to raise previous to the grant, provided that was necessary for the useful operation of the mill. — In Blaine’s Lessee v. Chambers, 1 Serg. & Rawle, 169, the Court decided, that a devise of “ a grist mill and ap- “ purtenances,” carried with it what was actually used as an appurtenant by the testator in his lifetime ; and Yeates J. said, “ by these words, every thing necessary for the full and free en- “ joyment of the grist mill, and requisite for the support of the “ establishment, such as a dam, water, the race leading to the “ mill, a proper portion of ground before the mill for the un- “ loading and loading of wagons, horses, &c. as used by the “ testator would pass, for without these appurtenances the “ grist mill could not be worked.” — In Pickering v. Stapler, 5 Serg. & Rawle, 107, Chief Justice Tilghman says, “ the wa- “ ter right was appurtenant to the mill and passed by the word “ appurtenances. This,” says he, “ appears so plain, that he “ who denies it should show the authority on which he rests [235]*235“ his opinion.. No such authority has been shown, but on the “ part of the defendant cases were produced, showing that priv- “ ileges of the kind in question pass by the name of appurte- “ nances.”
In Leonard v. White, 7 Mass. 6, the question was, whether, under a grant of a mill with all the privileges and appurtenances thereto belonging, the soil of a way passed, which had been immemorially used for the purpose of access to the mill from the highway. The Court held that the soil did not pass but that the way, as an easement, might be appendant or appurtenant to the mill. — In Blake v. Clark, 6 Greenl. 436, the Court go farther and decide that the term, “ mill,” may embrace the free use of the head of water existing at the time of the conveyance, as also a right of way or any other easement, which has been used with the mill, and which is necessary for its enjoyment. — In Taylor v. Hampton, 4 McCord, 96, the question now under consideration seems to have been considered as settled, that the pond is an appurtenance of the mill, and the purchaser has a right to keep up the water to the height to which it was raised at the time he purchased, even though the consequences were the overflowing of the grantor’s land.
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. The opinion of the Court was delivered at a subsequent term, by
Parris J.
As the jury have found that the lands of the Proprietors were divided in 1740, and that no mill had previously been erected by them, or under their authority, there were no facts in the case justifying the first and second requests of the defendants’ counsel. The Court are to charge the jury upon the law applicable only to the facts proved, but are not bound to answer abstract questions not' arising in the case on trial. If the mills had been erected by the Proprietors previous to the division of their common property, so that the mill site and land flowed had not at that time become the separate property of any individual, the request of the defendants’ counsel would have been pertinent, and it would have been the duty of the Court to have given the law, arising from those facts, to the jury.
The third request is, “ that the Court would charge, that if “ the dam, and mills and land, and No. 49, were owned by the “ same person or persons, ’and such owners conveyed the dam, “ and mills, and land and privileges and appurtenances, and af- “ terw.ards conveyed No. 49, the grantee of No. 49, would have “ on right to claim damages for keeping up the water by the dam, “ as it had been before the conveyance of No. 49.” The facts [233]*233are that the mills stand on a stream running southwardly or southwestwardly from Neguassctt pond in the town of Woolwich; that lot numbered 49, which is now owned by the complainant, and on which he alleges the injury to have accrued by the flowing, is bounded eastwardly by the pond, or includes a part of the pond ; — that the mill stands below No. 49 on the adjoining lot, and that this mill site was occupied as such, in 1734, and has been so occupied ever since, and that the mill dam has not been raised higher than it was formerly. The respondent offered proof tending to shew, that upwards of fifty years ago, the mill site, mill and privilege, and lot No. 49 were owned by the same person, and that such person conveyed the dam and mill, and land and privileges and appurtenances, still retaining No. 49, and that he afterwards conveyed No. 49 to a different grantee. Upon this proof, the respondent moved for the instructions contained in his third request. If these instructions were properly withheld, or if they were substantially given, there is no ground for disturbing the verdict on this point. — Were they properly withheld ?
What would pass by the terms dam, mills, privileges and appurtenances ? It is a principle of law, that where a thing is granted, the grant implies a right to all the means of enjoying it, so far as the grantor was possessed of those means. 1 Sound. 322, 323. — The use of any thing being granted, all is granted necessary to enjoy such use ; and in the grant of a thing, what is necessary for the obtaining thereof is included. Co. Litt. 56. Where the principal thing is granted, the incident shall pass. Co. Litt. 152.— Com. Dig. Grant, E. 9. — In the construction of a grant, the Court will take into consideration the object which the parties had in view, and the nature of the subject matter of the grant.
From the proof reported in the case, it appears that the meadow, now owned by the complainant, has been flowed ever since the first mills were erected on the site where the respóndanos mills now stand, which was, probably more than one hundred years ago ; — that the oldest witness examined, who could recollect seventy-three years ago, knew that, at that time, there was a dam there high enough to raise a sufficient head of water [234]*234to carry two saw mills and a grist mill well, and that the dam has always been high enough to flow the meadow owned by the complainant; — that the meadow was flat and low and always flowed, and that a dam thirty inches in height would flow it. — This has been the situation of the mill and dam ever since the site was first occupied, and of course it was thus when it belonged to the same person who owned the meadow flowed, being part of No. 49. While in his possession, the dam was kept up to the same height as it now is, and consequently, the meadow must have been flowed as it now is. — He, being the owner of the meadow as well as the dam, had a right to flow without being answerable for damages.
The mill could be of no use without a head of water sufficient for its operation, and that head could not be supplied, without continuing such a dam as would cause the meadow to be overflowed. — It was indispensably necessary to the enjoyment of the principal thing granted, and if, at the time of ■ the conveyance of the mill and its privileges and appurtenances, the grantor was the owner of all the land flowed, we think that both upon principle and authority, the grantee acquired a right to continue the dam so as to raise the same head of water'as the grantor had been accustomed to raise previous to the grant, provided that was necessary for the useful operation of the mill. — In Blaine’s Lessee v. Chambers, 1 Serg. & Rawle, 169, the Court decided, that a devise of “ a grist mill and ap- “ purtenances,” carried with it what was actually used as an appurtenant by the testator in his lifetime ; and Yeates J. said, “ by these words, every thing necessary for the full and free en- “ joyment of the grist mill, and requisite for the support of the “ establishment, such as a dam, water, the race leading to the “ mill, a proper portion of ground before the mill for the un- “ loading and loading of wagons, horses, &c. as used by the “ testator would pass, for without these appurtenances the “ grist mill could not be worked.” — In Pickering v. Stapler, 5 Serg. & Rawle, 107, Chief Justice Tilghman says, “ the wa- “ ter right was appurtenant to the mill and passed by the word “ appurtenances. This,” says he, “ appears so plain, that he “ who denies it should show the authority on which he rests [235]*235“ his opinion.. No such authority has been shown, but on the “ part of the defendant cases were produced, showing that priv- “ ileges of the kind in question pass by the name of appurte- “ nances.”
In Leonard v. White, 7 Mass. 6, the question was, whether, under a grant of a mill with all the privileges and appurtenances thereto belonging, the soil of a way passed, which had been immemorially used for the purpose of access to the mill from the highway. The Court held that the soil did not pass but that the way, as an easement, might be appendant or appurtenant to the mill. — In Blake v. Clark, 6 Greenl. 436, the Court go farther and decide that the term, “ mill,” may embrace the free use of the head of water existing at the time of the conveyance, as also a right of way or any other easement, which has been used with the mill, and which is necessary for its enjoyment. — In Taylor v. Hampton, 4 McCord, 96, the question now under consideration seems to have been considered as settled, that the pond is an appurtenance of the mill, and the purchaser has a right to keep up the water to the height to which it was raised at the time he purchased, even though the consequences were the overflowing of the grantor’s land. That was a case of very considerable magnitude, and was argued by some of the most able counsel in the State, yet although the question we are now considering was involved, and was of vital importance to the plaintiff, it was not even taken by the counsel, and the Court assumed it as settled, and as the starting point in their examination of the case.— Oakley v. Stanley, 5 Wend. 523, was precisely like the case before us. — In that it was decided, that the right to overflow adjoining premises of a grantor, to the extent necessary for the profitable employment of a water privilege conveyed, in the manner in which it existed and had been used previous to the grant, passes to the grantee as necessarily appurtenant to the premises conveyed. The Court say, there can be no question but the grantee acquired an absolute right to maintain the dam at the height at which it was when he purchased from the grantor, and that he or his grantees are not responsible to the grantor or those who hold under him for [236]*236any injury which the adjoining premises may receive from an overflow of water produced by the dam. — In Strickler v. Todd, 10 Serg. & Rawle, 63, it was decided, that by conveyance of a mill, the whole right of water enjoyed by the grantor, as necessary to its use, passes along with it as a necessary incident ; and the grantor cannot, by the conveyance of another lot of ground through which the stream passes, impair the right to the use of the water already vested in the first grantee. ■ — ■ It is unnecessary to extend this opinion by giving a summary of other corroborating cases. We will merely refer to Whitney v. Olney, 3 Mason’s Rep. 280; Wetmore v. White, 2 Caines’ Cases in Error, 87; New Ipswich Factory v. Batchelder, 3 N. Hamp. Rep. 190 ; Jackson v. Vermilea, 6 Cowen, 677; Nicholas v. Chamberlayn, Cro. Jac. 121; and Swansborough v. Coventry, 9 Bingham, 305.
From the view we have taken of this part of the case, we are of opinion that the instruction was properly requested. —■ Our next inquiry is, was it substantially given. The first instruction given was, “ that where the same person is owner of “ a mill-dam and also of a tract or parcel of land, which is “ overflowed by water, raised and thrown back upon it, by “means of such dam, if'he should sell and convey to A. B. “ the parcel flowed, reserving to himself, his heirs and assigns, “ the right to continue such dam and flowing without payment “ of damages, in such case neither A. B. nor his heirs or as- “ signs, could maintain a complaint under our statute against “ the grantor of A. B., his heirs or assigns.” — Of the correctness of this instruction there can be no doubt. — The statement of facts upon which it was given supposes an express reservation to the grantor, of the right to flow, in which case the grantee would clearly have no right to compensation for injury occasioned by the flowing. — -The charge proceeds, “ but if no “ such right is reserved in the' deed to A. B. then, though he “ purchases the land subject to the right which the statute gives “ the grantor to continue the dam and the flowing, yet he pur- “ chases it also with the right to recover damages for such flow“ing.” We are not disposed to question the correctness of this part of the charge, but it is predicated on a different state [237]*237of facts from those supposed in the request under consideration and which the defendant contends he had proved. The facts assumed in the charge are, that the grantor conveyed the premises flowed, but retained the mill and dam ; —■ the facts claimed to have been proved, and on which the instruction was requested are, that the grantor conveyed the mill, dam, privileges and appurtenances, but retained a portion of the tract flowed. — In the latter case, we think'the right to keep the dam to the same height it was continued by the grantor, and of course, to flow as much of his land as he was accustomed to flow, passed as an incident to the mill, necessary for its useful enjoyment, and that the grantee acquired an easement in so much of the grant- or’s land, as would be flowed by continuing the head of water at the mill at its usual height. — But the grantor’s rights in the former case would depend upon a very different principle, which it is not necessary should be discussed or decided at the present, time, as the facts proved do not require it. — The charge proceeds, “ that where in the course of conveyancing, devise or “ descent, the same person is, for a rime, an owner, both in the “ dam which causes the flowing and in the land flowed, the “ right to recover compensation is suspended only during such “ oTvuershipin both the dam and the land injured.” We think, in such a case the right to recover compensation is entirely extinguished, and that the owner may, by conveyance, again separate the title, without receiving the right to recover compensation. Ho may do it by express reservation, as is contemplated in the first branch of the charge in this case ; or ho may do it, as the defendant contends was done in this case, by conveying the mill, &c., and the right to flow would follow as an easement, and consequently the right to recover compensation would not be revived. Or if he so conveyed as to entitle the purchaser of the lot flowed to compensation for the injury sustained by the flowing, it would not be a revival of any suspended right, but a creation of a now one, having its origin in the grant, and in facts existing subsequent thereto, but, in no way depending upon the situation of the estate at any time prior to, or during the unity of possession. As in the case of easements or servitudes ; if the proprietor of the land or tone[238]*238ment for which the basement or service .was established, acquire the property of the land or tenement which serves, and 'after-wards sells it again without reserving the service, it is sold free, for the easement or service was extinguished by|the unity of possession, and is not re-established to the prejudice of the new purchaser. Domat’s Civil Law, lib. 1, sect. 6, tit. Services.
We do not perceive that the instructions moved for in the defendant’s third request were either expressly or substantially given, and believing the law to be as the Court were requested to instruct the jury, a new trial must be granted. It is, therefore, unnecessary to discuss, at length, the other questions arising in the case.
The instruction.” that as lot No. 49 was bounded on the riv- “ er, it extended to the thread of the river,” is undoubtedly correct. It was urged in argument that this principle did not apply to natural ponds and large collections of water, and that the boundary of lot No. 49 was a natural pond of two hundred rods in width, even before any flowing or obstruction by dams. How far such a state of facts would render the principle of law involved in this part of the charge inapplicable, we are notjcalled upon to decide, as the case before us does not shew the existence of the facts. T.he law of boundary, as applied to rivers, would, no doubt, be inapplicable to the lakes and other large natural collections' of fresh water within the territory of this State. At what point its applicability ceases- it is unnecessary now to consider, as the case does not call for it. Again, it was urged in the argument, that the complainant could not recover, because, by the terms of the conveyance, under which he held, he was limited by the margin of the pond, as kept up by the dam ; and the counsel supposed a case, where a grantor conveys by boundaries designated on a plan, and contended that by these boundaries the grantee must be governed. No doubt he must. The grantor has a right to prescribe such limits to his grant as he pleases. If' he bounds by a. river, the grant extends to the channel; but he may bound by monuments, which will limit his grant to the bank, or at any other point he pleases. Dunlap v. Stetson, 4 Mason’s R. 349. We have not before us any evidence that the grant of No. 49 was in express terms, or [239]*239by reference to any plan or designated monuments, limited to the margin of the pond.
As to that part of the charge which relates to presumption of grant or license, we forbear to enter into a discussion of the question it involves.
This Court have decided, in Tinkham, v. Arnold, 3 Greenl. 120, that the flowing of lands for the support of mills for any term of time, furnishes no presumptive evidence of grant. — ■ Whether it may not amount to presumptive evidence of license remains to be settled. Here is a case where mills have been standing and water flowed, as at the present time, for one hundred years, and no claim for damages ever been asserted until the present suit. The party complainant has himself, been in possession of lot No. 49, under title, upwards of thirty years, during all which time the flowing has been uninterruptedly continued to the prejudice of his rights, if he had any. He and his grantors have seen the dam raised and lowered, repaired and rebuilt, without manifesting any opposition, or asserting any claim either to compensation for flowing, or to the land itself, and whether such facts, although not sufficient to raise a presumption of grant, may not afford presumptive evidence of license, so as to bar his claim to damages, is a question entitled to grave consideration. Clement v. Durgin, 5 Greenl. 14. We are aware that the law giving to mill owners a right to flow the land of others, which is a departure from the principles of the common law, has been viewed with some degree of jealousy, and that the policy of continuing its provisions has been doubted. Stowell v. Flagg, 11 Mass. 368. It is not our province to judge of the expediency of the law, but to administer it according to its fair interpretation. By it, the right to flow is granted, and also the correspondent right to damages. But where the flowing is under a license, or a grant of easement, the right to damages, under the statute, is barred.