The opinion of the court was delivered by
Hall, J.
Several objections are made to the ruling of the court in this case.
It is urged on the part of the defendants, that the reservation in the deed from Williams to Young and Nichols of “the privilege of one half of the bark mill,” he being at the time of the execution of the deed the owner of the land covered by the stream and on both sides of it, included, as incident to the bark mill, a water power sufficient for its proper use as such, and that, under that reservation, the defendants might lawfully do the act complained of. If it be conceded, that the use of water might be conveyed, or reserved, as incident to a mill, still I think the objection is, in this case, untenable, for several reasons. In the first place, the defendants show no title to this half of the bark mill, under the Laphams, in whose favor the reservation was made; and until they show, that they have succeeded to their right, whatever it was, they should be holden to have done the act complained of under the title which they have proved. Besides, the clause in the deed, upon which the defendants rely, is, in effect, an exception from the conveyance of the “ privilege,” whatever it might be, of the Laphams in one half of the bark mill, — leaving the extent of the privilege to be measured by such title to the bark mill, as the Laphams might be able to show. For any thing that appears, the right of the Laphams to the use of the water might have been subservient to a superior right in Williams; in which case such superior right would have passed to Young and Nichols by the very deed containing the reservation. And again, the case finds, that ever since 1816 the works on the north side of the stream have always claimed and enjoyed, as against the bark mill, the first use of the water ; which first use o'f the water for more than fifteen years [256]*256would, of itself, be sufficient to extinguish any paramount right in the bark mill, and put the defendants upon showing the extent of the subservient right claimed by them.
The next objection, which is made to the judgment of the court below, arises upon the construction given by the court to the partition deeds of Young and Nichols, under which the respective rights of the plaintiffs and defendants are claimed. The plaintiffs claim the preference of the water for their marble and grist mill over the defendants1 bark mill, under these deeds, by virtue of their conveyance from Young in 1838; and the charge of the court was in accordance with their claim. The defendants insist, that, admitting the plaintiffs have acquired all the right to the water which Young could give, (which, however, they deny,) still, that the manner in which the plaintiffs used the water was an infringement of the rights of the bark mill; — in other words, they insist, that Young himself could not, as against them, appropriate the water to the use of the marble and grist mill, as the plaintiffs claim to use it.
The partition deeds, having both been executed at the same time and relating to the same subject matter, are doubtless to be taken as one instrument; and any grant or limitation of the use of water, contained in either, is to be treated as binding on both the parties and those claiming under them. Strong v. Barnes, 11 Vt. 221, Heed v. Field, 15 Vt. 672. Ashley v. Pease, 18 Pick. 221. The deed from Nichols to Young is silent in regard to the water ; but that from Young to Nichols, after describing certain lands conveyed, proceeds as follows, viz, — “ also the tan yard and bark mill, ‘ with a privilege of water for the said bark mill, when I, the said 'Daniel Young, my heirs, or assigns, do not want the water for the ' use of the works now standing on the said dam, or any others to ‘ be erected hereafter, that draw no more water than those now ' standing.” The rights of the respective parties depend upon the construction to be given to this deed, as applicable to the facts in the case; and it should be construed in conformity to the intent of the parties to it at the time of its execution.
It appears from the partition deeds, that there was, at the time of their execution, a dam standing across the stream; that Young had works on one side of the stream, and Nichols a bark mill on the other. The contract was made with reference to the works then [257]*257moved by the water power of the dam; and it provided, that Young’s works should have sufficient to carry them, and that the bark mill should only have the water, when it was not wanted for those works; but when the water was not thus wanted, it all, or at least a sufficient quantity for its purposes, belonged to the bark mill. It was foreseen, that Young might wish to substitute other works for' those then in use; and to meet such a contingency, it was provided, that the quantity of water to be used by such substituted works should be measured by the quantity required for the works then in being, — that it should not exceed that quantity.
There is undoubtedly an inclination in courts to construe grants of water liberally, so as to impose no unnecessary restriction upon the manner of its use; and when the words used will admit of one construction, which would limit the use to a particular purpose, and another, which would allow the use specified to be merely a measure of the quantity to be used, the latter construction is adopted; because it is more favorable to the grantee, and also to progressive improvement in the use of water power. But this rule of construction can have little or no application to this case. It is impossible to give the owners of the works on the north side of the stream the unlimited and unrestricted use of the quantity of water, that it-would require to carry their works, without wholly depriving the owners of the bark mill of the right reserved to them. For though the use of the water by the proprietors of the bark mill was subservient to that of the owners of the other works, it was nevertheless a right, to the extent that it was granted, and was not a mere privilege, held at the sufference of the other party.
It is not improbable, that, at some seasons'of the year, no more water run in the stream, than would be sufficient to carry the works on the north side of it. At such a time, those works might use the whole of the water; but if they did not use it, the bark mill might do so. The owners of those works could not, at such a time, as against the owners of the bark mill, open their flood gate and wantonly suffer the whole to pass off down the stream. No such use, or rather no such waste, of the water could have been contemplated by the parties, at the time of the contract. The bark mill was to have the water, when it was not wanted by the other works. The water can in no sense be said to be wanted for those works, unless it is used [258]*258for moving them. If the works are taken down, or abandoned, the water is not wanted for them. The contract must be construed as a restriction upon Young, and those claiming under him, to the use of the quantity of water designated, for the purpose of carrying works standing upon the dam; — that is, (giving the words “standing ' upon the dam ” a reasonable meaning,) to the use of the water for works moved by the water power of that dam.
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The opinion of the court was delivered by
Hall, J.
Several objections are made to the ruling of the court in this case.
It is urged on the part of the defendants, that the reservation in the deed from Williams to Young and Nichols of “the privilege of one half of the bark mill,” he being at the time of the execution of the deed the owner of the land covered by the stream and on both sides of it, included, as incident to the bark mill, a water power sufficient for its proper use as such, and that, under that reservation, the defendants might lawfully do the act complained of. If it be conceded, that the use of water might be conveyed, or reserved, as incident to a mill, still I think the objection is, in this case, untenable, for several reasons. In the first place, the defendants show no title to this half of the bark mill, under the Laphams, in whose favor the reservation was made; and until they show, that they have succeeded to their right, whatever it was, they should be holden to have done the act complained of under the title which they have proved. Besides, the clause in the deed, upon which the defendants rely, is, in effect, an exception from the conveyance of the “ privilege,” whatever it might be, of the Laphams in one half of the bark mill, — leaving the extent of the privilege to be measured by such title to the bark mill, as the Laphams might be able to show. For any thing that appears, the right of the Laphams to the use of the water might have been subservient to a superior right in Williams; in which case such superior right would have passed to Young and Nichols by the very deed containing the reservation. And again, the case finds, that ever since 1816 the works on the north side of the stream have always claimed and enjoyed, as against the bark mill, the first use of the water ; which first use o'f the water for more than fifteen years [256]*256would, of itself, be sufficient to extinguish any paramount right in the bark mill, and put the defendants upon showing the extent of the subservient right claimed by them.
The next objection, which is made to the judgment of the court below, arises upon the construction given by the court to the partition deeds of Young and Nichols, under which the respective rights of the plaintiffs and defendants are claimed. The plaintiffs claim the preference of the water for their marble and grist mill over the defendants1 bark mill, under these deeds, by virtue of their conveyance from Young in 1838; and the charge of the court was in accordance with their claim. The defendants insist, that, admitting the plaintiffs have acquired all the right to the water which Young could give, (which, however, they deny,) still, that the manner in which the plaintiffs used the water was an infringement of the rights of the bark mill; — in other words, they insist, that Young himself could not, as against them, appropriate the water to the use of the marble and grist mill, as the plaintiffs claim to use it.
The partition deeds, having both been executed at the same time and relating to the same subject matter, are doubtless to be taken as one instrument; and any grant or limitation of the use of water, contained in either, is to be treated as binding on both the parties and those claiming under them. Strong v. Barnes, 11 Vt. 221, Heed v. Field, 15 Vt. 672. Ashley v. Pease, 18 Pick. 221. The deed from Nichols to Young is silent in regard to the water ; but that from Young to Nichols, after describing certain lands conveyed, proceeds as follows, viz, — “ also the tan yard and bark mill, ‘ with a privilege of water for the said bark mill, when I, the said 'Daniel Young, my heirs, or assigns, do not want the water for the ' use of the works now standing on the said dam, or any others to ‘ be erected hereafter, that draw no more water than those now ' standing.” The rights of the respective parties depend upon the construction to be given to this deed, as applicable to the facts in the case; and it should be construed in conformity to the intent of the parties to it at the time of its execution.
It appears from the partition deeds, that there was, at the time of their execution, a dam standing across the stream; that Young had works on one side of the stream, and Nichols a bark mill on the other. The contract was made with reference to the works then [257]*257moved by the water power of the dam; and it provided, that Young’s works should have sufficient to carry them, and that the bark mill should only have the water, when it was not wanted for those works; but when the water was not thus wanted, it all, or at least a sufficient quantity for its purposes, belonged to the bark mill. It was foreseen, that Young might wish to substitute other works for' those then in use; and to meet such a contingency, it was provided, that the quantity of water to be used by such substituted works should be measured by the quantity required for the works then in being, — that it should not exceed that quantity.
There is undoubtedly an inclination in courts to construe grants of water liberally, so as to impose no unnecessary restriction upon the manner of its use; and when the words used will admit of one construction, which would limit the use to a particular purpose, and another, which would allow the use specified to be merely a measure of the quantity to be used, the latter construction is adopted; because it is more favorable to the grantee, and also to progressive improvement in the use of water power. But this rule of construction can have little or no application to this case. It is impossible to give the owners of the works on the north side of the stream the unlimited and unrestricted use of the quantity of water, that it-would require to carry their works, without wholly depriving the owners of the bark mill of the right reserved to them. For though the use of the water by the proprietors of the bark mill was subservient to that of the owners of the other works, it was nevertheless a right, to the extent that it was granted, and was not a mere privilege, held at the sufference of the other party.
It is not improbable, that, at some seasons'of the year, no more water run in the stream, than would be sufficient to carry the works on the north side of it. At such a time, those works might use the whole of the water; but if they did not use it, the bark mill might do so. The owners of those works could not, at such a time, as against the owners of the bark mill, open their flood gate and wantonly suffer the whole to pass off down the stream. No such use, or rather no such waste, of the water could have been contemplated by the parties, at the time of the contract. The bark mill was to have the water, when it was not wanted by the other works. The water can in no sense be said to be wanted for those works, unless it is used [258]*258for moving them. If the works are taken down, or abandoned, the water is not wanted for them. The contract must be construed as a restriction upon Young, and those claiming under him, to the use of the quantity of water designated, for the purpose of carrying works standing upon the dam; — that is, (giving the words “standing ' upon the dam ” a reasonable meaning,) to the use of the water for works moved by the water power of that dam. The owners on the north side of the stream could neither insist upon having the specified quantity of water pass off at their flood gate, without use, nor, by cutting a channel around the dam, or by taking it down, could they be allowed to appropriate it to the use of other works below. Neither of these things could have been in the contemplation of the parties to the partition deeds, and either of them would wholly destroy the rights intended to be secured to the owners of the bark mill.
It only remains to apply this construction of the deeds to the facts of the case. ' It appears from the bill of exceptions, that at the time of the removal by the defendants of the obstruction, that prevented the water from passing to their bark mill, the water was not wanted for the works standing upon the dam in the place of the works in existence at the time of the making of the partition deeds, nor for any works drawing water from or moved by the wafer power of that dam. The mill of the plaintiffs is some distance below the dam, and they claim, not to draw water from the dam, but to have the water fill up the pond and run over the dam, and again fill up another pond made by a dam below, so that they may draw the water from such lower dam for their mill. This is no such use of the water, as could have been contemplated by the partition deeds. It is moreover a use manifestly injurious to the owners of the bark mill.
The dam seems to have been constructed with reference to the first use of the water by the works on the north side of the stream and to the subservient use of it by the bark mill. The flume on the north side- was about one foot lower than the tube on the south side. It is quite probable, that this foot of water, thus secured to the works on the north side, might be sufficient, for a portion of the time at least, for all their purposes ; in which case, whenever the water rose so high, as to run into the defendants’ tube, they might use it for their bark mill. But if the plaintiffs’ claim is to be sustained, the defendants must keep their tube closed, until the water [259]*259has filled up the pond and has run over the dam and filled up another pond below, so that a sufficient head of water has been obtained in the pond below, to carry the plaintiffs’ mill. Now, although the plaintiffs may require no more water to drive their mill, than was contemplated by the partition deeds, yet there is manifestly a waste of water in filling up the two ponds, as well as a loss of time to the defendants in the use of their bark mill, while the ponds are filling up, — to say nothing of the additional leakage of two dams instead of one, and the increased loss of water by evaporation and absorption.
By the use of the water, as claimed by the plaintiffs, the defendants are put to additional trouble and inconvenience, in ascertaining when they may use the water. If the works of the plaintiffs were standing at the dam, in the place of those in being at the time of the execution of the deeds, the fact, that the water was passing off over the dam, might be a very sure indication, that it was not wanted for them. But now such waste of the water is no indication, that the plaintiffs do not want it. The defendants, in order to ascertain whether the plaintiffs want the water, must go below, to their mill. The case does not show the exact distance of the plaintiffs’ mill from the dam; but if the defendants must go below, to ascertain whether they may use the water, may they not as well be required to go one distance below, as another. And if the plaintiffs may have the water run over the dam to fill up a pond below, before they use it, may not their pond be large, as well as small, and may it not as well be a mile, or a greater distance, below, as but a few rods ?
We are all of opinion, that the use of the water claimed by the plaintiffs was not such a usé, as was intended by the parties at the time of the making of the partition deeds, — that the use contemplated was at the dam then standing, or one substituted for it, in case of its destruction, — and consequently, that the plaintiffs have no right of action against the defendants for the act complained of in their declaration.
There is another ground, on which I am inclined against the plaintiffs. I am not well satisfied, that the plaintiffs have acquired any right to the use of the water at the old dam, by their deed from Young, whatever the right of Young may have been. The deed from Young, under which the plaintiffs claim, executed in June, [260]*2601838, in the first place grants to Rogers and Griffith the privilege of erecting a dam on the grantor’s land, below the old dam, and of raising the water thereby to a certain height, and of taking it from such new dam, across the grantor’s land, to the plaintiffs’ mill; but it gives no right to the water at the old dam, The deed then proceeds as follows, viz, — “ and the said Rogers and Griffith, their heirs and assigns, if they should not build a dam at the place designated, they shall have the privilege” &c., — using the language w)fich is claimed by the plaintiffs to give them a right to the water at the old dam. Now, conceding that the language, used was intended to convey Young’s right, (and even that is not without doubt,) still the question would remain, whether such conveyance was to take effect absolutely, or only upon condition, that the grantees should not choose to avail themselves of the first privilege granted, namely, that of erecting a new dam.
The language of the deed is in the alternative. The privilege of erecting a dam is first granted, and then, in case the dam should not be erected, the privilege of drawing the water in a certain manner. Can it be said, from the language of this deed, that both privileges were absolutely granted? Was it not rather a grant of either one, at the election of the grantees? And having elected (as the case is understood to find) to erect the dam, can they also claim the use of water, which was only granted in case they did not erect it? I am inclined to think, as before stated, that the plaintiffs have not shown any right, under Young, to the use of the water at the old dam. But, as this point was not much argued at the hearing, the decision of the case is not put on this ground.
The judgment of the county court is set aside and a new tria] granted,