Bellows, J.
The charge was in substance that the defendant, being a riparian proprietor, was entitled to a reasonable use of the stream for manufacturing purposes; and whether it was a reasonable use to throw into the stream the saw-dust resulting from the process of manufacture, was a question of fact for the jury; and in determining that question the jury were required to keep in yiew that the plaintiff’ had a similar right to the reasonable use of the stream, which the defendant could not lawfully infringe; and they were further instructed that, in deciding whether the use by the defendant was reasonable, they were to take into consideration all the circumstances of the case, including the size and character of the [584]*584stream, the nature and importance of the use claimed and exercised by the defendant, together with the inconvenience or injury to the plaintiff.
To these instructions we think there can be no objection ; on the contrary, they are sustained by the general current of authority upon that subject.
But the plaintiff urges that, in accordance with his request, the court should have charged the jury that the defendant had no right to conduct his saw-dust and shavings into the river, if they did any injury to the plaintiff’s lands below, and also, that he had no right to discharge them into the river, unless such'discharge was necessary to the running of his mill; and it appears that the court declined to charge the jury in these terms, but did instruct them that each proprietor might use and apply the water, as it runs over his land, to domestic, agricultural, or manufacturing purposes, provided he uses it in a reasonable manner, and so as to work no actual or material injury to the others; and by actual or material injury is meant infringement of the right of others; and again, that the test is, not whether it produces some inconvenience or detriment to him, but whether it impairs the full and reasonable enjoyment of the stream that he is entitled to equally with the proprietor above.
Of these instructions we think the plaintiff has no cause to complain ; nor do we perceive any error in declining to give the instructions prayed for, in the terms suggested.
The instructions asked for were not correct without some qualifications ; and, as we understand the charge, those qualifications were accurately stated.
The general principles that govern the use of running streams in respect to the abstraction, detention, or diversion of the water must also govern in respect to the deposit in the stream of waste matter and foreign substances resulting from the process of manufacture; namely, that a reasonable use may be made, and nothing more. What is such reasonable use in both cases is a question not of law,, but of fact, depending upon the' circumstances of each particular case. In respect to the former class of cases, it may be considered as well settled that in the use of a stream for domestic, agricultural and manufacturing purposes, to which every riparian owner is entitled, there may of right be some diminution, retardation, or acceleration of the natural current, that is perfectly consistent with the common right, and which is necessarily implied in the right to use it at all. Tyler v. Wilkinson, 4 Mason 397; 3 Kent Com. 572, and cases cited; Embrey v. Owen, 6 W. H. & G. 352. Such owner may even abstract and consume a portion of the water, for domestic purposes, for watering his cattle, and in some cases for irrigating his land, taking care not to interfere materially with a similar right in his neighbor. So, where the nature of the stream requires it, he may detain the water by his dam, to enable him to apply it usefully to manufacturing purposes, and then discharge it in the working of his mills, in quantities greater than the natural flow of the stream; but such use must be reasonable, and so as not to cause material injury or annoyance to his neighbor. What is a reasonable use must [585]*585depend upon a variety of conditions, such as the size and character of the stream, and the uses to which it can be or is applied ; and, from the nature of the case, it is incapable of being defined to suit the vast variety of circumstances that exist; but the rule is flexible, and suited to the growing and changing wants of communities.
As it is in respect to the abstraction, detention, and diversion of the water, so it is and must be in respect to the deposit of waste, or other substances in the stream, as incidental to its use in the various modes before described. In many or most of these modes of use such deposits are to some extent necessarily made. In the construction and repair of mills and dams, in the excavations required for their foundations, and in the frequent removal of the gravel used for tightening such dams, the water must for a time, and necessarily, be rendered so impure as to cause inconvenience occasionally to persons engaged in a kind of manufacture requiring pure water. But if such building and repairs are reasonably conducted, the inconvenience must be borne just the same, and for the same reasons, as the inconvenience caused by the temporary and reasonable detention of the water while filling the dam. So in the use of a stream for purposes of agriculture, such as washing sheep, crossing it with teams, allowing cattle and swine to traverse it, — the same principles will apply. So in the use of many kinds of mills, such as saw-mills, fulling-mills, cotton and woolen factories, — there must be thrown into the stream more or loss of the waste, such as saw-dust, soap-lees, and other impurities, and no ordinary care or prudence could prevent it. In the other cases such disposition of the whole waste, although not absolutely indispensable, would add greatly to the productive value of the mill power.
Whether, in either case5 it may be rightfully done must depend upon the question whether, under all the circumstances of the case, it is or is not a reasonable use of the stream; and in determining that question the extent of the benefit to the mill owner, and of inconvenience or injury to others, may, as stated in the charge, very properly be considered. So in respect to the size and chai’acter of the stream, it being obvious that an amount of diminution or pollution which would be insignificant in a large stream, might, in a small one, be wholly destructive of the common right. So also, in determining the reasonableness of suffering the manufacturer’s waste to pass off in the current, much must depend upon the use to which the stream below can be or is applied; whether as a mere highway alone, or for purposes of manufacture, requiring pure water, or for the supply of an aqueduct to a large city, as in the case of the Croton river; and in respect to the lands below .adjacent to the river, the character of the banks, whether they are usually overflowed or not in high water, should be considered.
In accordance with these views, and directly in point, is the case of Snow v. Parsons, 28 Vt. 459, which was an action on the case for obstructing the plaintiff’s water-wheel by means of the spent tan bark discharged into the stream at the defendant’s tannery; audit was held that the reasonableness of such use and the extent of [586]*586inconvenience to which proprietors below must submit, was a question of fact for the jury. '
The general views which we have stated are sustained by a great weight- of authority, and among them, beside those already cited, are Merritt v. Brinkerhoff, 17 Johns.
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Bellows, J.
The charge was in substance that the defendant, being a riparian proprietor, was entitled to a reasonable use of the stream for manufacturing purposes; and whether it was a reasonable use to throw into the stream the saw-dust resulting from the process of manufacture, was a question of fact for the jury; and in determining that question the jury were required to keep in yiew that the plaintiff’ had a similar right to the reasonable use of the stream, which the defendant could not lawfully infringe; and they were further instructed that, in deciding whether the use by the defendant was reasonable, they were to take into consideration all the circumstances of the case, including the size and character of the [584]*584stream, the nature and importance of the use claimed and exercised by the defendant, together with the inconvenience or injury to the plaintiff.
To these instructions we think there can be no objection ; on the contrary, they are sustained by the general current of authority upon that subject.
But the plaintiff urges that, in accordance with his request, the court should have charged the jury that the defendant had no right to conduct his saw-dust and shavings into the river, if they did any injury to the plaintiff’s lands below, and also, that he had no right to discharge them into the river, unless such'discharge was necessary to the running of his mill; and it appears that the court declined to charge the jury in these terms, but did instruct them that each proprietor might use and apply the water, as it runs over his land, to domestic, agricultural, or manufacturing purposes, provided he uses it in a reasonable manner, and so as to work no actual or material injury to the others; and by actual or material injury is meant infringement of the right of others; and again, that the test is, not whether it produces some inconvenience or detriment to him, but whether it impairs the full and reasonable enjoyment of the stream that he is entitled to equally with the proprietor above.
Of these instructions we think the plaintiff has no cause to complain ; nor do we perceive any error in declining to give the instructions prayed for, in the terms suggested.
The instructions asked for were not correct without some qualifications ; and, as we understand the charge, those qualifications were accurately stated.
The general principles that govern the use of running streams in respect to the abstraction, detention, or diversion of the water must also govern in respect to the deposit in the stream of waste matter and foreign substances resulting from the process of manufacture; namely, that a reasonable use may be made, and nothing more. What is such reasonable use in both cases is a question not of law,, but of fact, depending upon the' circumstances of each particular case. In respect to the former class of cases, it may be considered as well settled that in the use of a stream for domestic, agricultural and manufacturing purposes, to which every riparian owner is entitled, there may of right be some diminution, retardation, or acceleration of the natural current, that is perfectly consistent with the common right, and which is necessarily implied in the right to use it at all. Tyler v. Wilkinson, 4 Mason 397; 3 Kent Com. 572, and cases cited; Embrey v. Owen, 6 W. H. & G. 352. Such owner may even abstract and consume a portion of the water, for domestic purposes, for watering his cattle, and in some cases for irrigating his land, taking care not to interfere materially with a similar right in his neighbor. So, where the nature of the stream requires it, he may detain the water by his dam, to enable him to apply it usefully to manufacturing purposes, and then discharge it in the working of his mills, in quantities greater than the natural flow of the stream; but such use must be reasonable, and so as not to cause material injury or annoyance to his neighbor. What is a reasonable use must [585]*585depend upon a variety of conditions, such as the size and character of the stream, and the uses to which it can be or is applied ; and, from the nature of the case, it is incapable of being defined to suit the vast variety of circumstances that exist; but the rule is flexible, and suited to the growing and changing wants of communities.
As it is in respect to the abstraction, detention, and diversion of the water, so it is and must be in respect to the deposit of waste, or other substances in the stream, as incidental to its use in the various modes before described. In many or most of these modes of use such deposits are to some extent necessarily made. In the construction and repair of mills and dams, in the excavations required for their foundations, and in the frequent removal of the gravel used for tightening such dams, the water must for a time, and necessarily, be rendered so impure as to cause inconvenience occasionally to persons engaged in a kind of manufacture requiring pure water. But if such building and repairs are reasonably conducted, the inconvenience must be borne just the same, and for the same reasons, as the inconvenience caused by the temporary and reasonable detention of the water while filling the dam. So in the use of a stream for purposes of agriculture, such as washing sheep, crossing it with teams, allowing cattle and swine to traverse it, — the same principles will apply. So in the use of many kinds of mills, such as saw-mills, fulling-mills, cotton and woolen factories, — there must be thrown into the stream more or loss of the waste, such as saw-dust, soap-lees, and other impurities, and no ordinary care or prudence could prevent it. In the other cases such disposition of the whole waste, although not absolutely indispensable, would add greatly to the productive value of the mill power.
Whether, in either case5 it may be rightfully done must depend upon the question whether, under all the circumstances of the case, it is or is not a reasonable use of the stream; and in determining that question the extent of the benefit to the mill owner, and of inconvenience or injury to others, may, as stated in the charge, very properly be considered. So in respect to the size and chai’acter of the stream, it being obvious that an amount of diminution or pollution which would be insignificant in a large stream, might, in a small one, be wholly destructive of the common right. So also, in determining the reasonableness of suffering the manufacturer’s waste to pass off in the current, much must depend upon the use to which the stream below can be or is applied; whether as a mere highway alone, or for purposes of manufacture, requiring pure water, or for the supply of an aqueduct to a large city, as in the case of the Croton river; and in respect to the lands below .adjacent to the river, the character of the banks, whether they are usually overflowed or not in high water, should be considered.
In accordance with these views, and directly in point, is the case of Snow v. Parsons, 28 Vt. 459, which was an action on the case for obstructing the plaintiff’s water-wheel by means of the spent tan bark discharged into the stream at the defendant’s tannery; audit was held that the reasonableness of such use and the extent of [586]*586inconvenience to which proprietors below must submit, was a question of fact for the jury. '
The general views which we have stated are sustained by a great weight- of authority, and among them, beside those already cited, are Merritt v. Brinkerhoff, 17 Johns. 306, which w’as elaborately discussed both at the bar and by the bench; and the court say (p. 320), that “ the common use of the water of a stream by persons having mills above is frequently, if not generally, attended with damage and loss to the mills below; but that is incident to that common use, and for the most part unavoidable. If the injury is trivial, the law will not afford redress, because every person who builds a mill does it subject to this contingency.” See also Hetrich v. Deachler, 6 Barr (Penn.) 32; Pitts v. Lancaster Mills, 13 Met. 156 ; Blanchard v. Baker, 8 Greenl. 245; Arnold v. Foot, 12 Wend. 330; Sampson v. Hoddinnoit, 1 J. Scott N. S. Com. Bench 590; 87 Com. Law; Ang. on Water-courses, sec. 115, et seq., and sec. 120, et seq., 3 Kent Com. 446, and cases, and Wason v. Sanborn, Rockingham County, June, 1861.
But it is urged that the court should have charged the jury, as requested by the plaintiff, that the defendant “had no right to discharge his saw-dust and shavings into the river, unless such discharge was necessary to the running of his mills.” The question, however, was not whether the acts complained of were necessary to the enjoyment of the defendant’s right, in the sense that without them it could not be enjoyed at all, but whether such acts were done in the reasonable use of the stream; and of course in deciding that question the jury should consider the necessity or importance of the right claimed so to discharge the waste, as well as the extent of the injury likely to be caused to the plaintiff.
The plaintiff’s counsel regards this discharge of the waste as an act by itself, distinct from the use of the mill, and likens it to the case of depositing the waste directly upon the plaintiff’s land by means of teams or machinery provided for that purpose. To this view we are unable to ássent, because the discharge of the waste into the stream, so far as it is reasonable, must be regarded as an incident of the right to use the stream for the manufacture which produces such waste, otherwise the act, if calculated to injure the proprietors below, could not be justified. In this respect it stands upon the same ground as the retardation or acceleration of the current in the proper and reasonable use of the mills.
Upon this point the court charged the jury to consider how far the use, if important, could be of practical value without the right claimed, and also the extent of the detriment, inconvenience, or injury to the owner below; and this we think goes as far as the plaintiff could rightfully ask.
The remaining question touches the admission of evidence of usage, as bearing upon the reasonableness of discharging the saw-dust and shavings into the stream. There are cases where the customs and usages of trade may be proved to aid in the construction of contracts, and in defining the obligations arising out of such trade. 1 Greenl. Ev., sec. 292; 2 Stark. Ev. 453, 456, and notes; Dunham [587]*587v. Day, 13 Johns. 40; Cutter v. Powell, 6 T. R. 320 ; Noble v. Kenoway, Doug. 510; Dolby v. Hiest, 1 B. & B. 224; Renner v. Bank of Columbia, 9 Wheat. 581.
But whether such customs and usages may or may not be proved to bear upon the question of reasonableness in a case not growing out of any contract, upon which we give no opinion, we are satisfied that the court erred in admitting the proof of usage in the case before us; upon the ground that the jury maybe presumed to be already sufficiently informed as to what is a reasonable use of a water-course, as they are supposed to be as to what shall constitute a reasonable state of repair of a highway; Hubbard v. Concord, 35 N. H. 60 ; Patterson v. Colebrook, 29 N. H. 94; or what shall be considered a reasonable use of it by the traveller.
Our opinion therefore is that this does not belong to that class of cases concerning navigation, trade, or manufactures, about which the jury may be supposed to require the aid arising from the proof of customs or usages ; but we think the admission of such evidence would be to open an extensive field of enquiry in this and similar eases, upon the same principle, that would tend greatly to increase the expenses of litigation, without affording in general any substantial aid to the jury.
The direction to the jury upon this point appears to have been based upon the highly respectable authority of Snow v. Parsons, 28 Vt. 459 ; but upon a careful examination of the authorities we are unable to reconcile it with the course of our own courts upon that subject.
There must, therefore, be
A new trial.