Hosmer, Ch. J.
The plaintiffs are the owners of a tract of four acres of land, with an oil mill upon it, and likewise of a dam across a stream of water, called the little dam; and they claim, that the defendants tore down the dam, and, by privation of the water, rendered their oil mill useless.
It appears, that the defendants took up the gate at the East side of the little dam, and diverted the water from the plaintiffs’ oil mill, permitting it to run in its natural channel to the defendants’ grist mill; but the plaintiffs’ right to the water, for the purpose of working the oil mill, they deny.
In the trial of the cause, many facts were proved and questions made, which it is unnecessary to notice. I shall only select those, on which the title of the plaintiffs, in my view of the subject, entirely depends.
In the year 1767, James Landon and others owned the land on both sides of the brook before-mentioned, from the Long-pond, whence it issued, to below the plaintiffs’ oil mill, and still further down to the land then owned by Matthias Kelsey, on which a grist mill was erected, now the property of the defendants.
The brook, in its natural course, ran to the grist mill of Kelsey; but the Landons, then the owners of the land on which the plaintiffs’ oil mill is, by means of the little dam and a sluiceway, took the water, which they thought necessary to move a grist mill, erected on the precise site where the present oil mill stands. The importance to Matthias Kelsey of having the controul of the little dam, to prevent the diversion of the water from his grist mill, is so obvious, that no one can be at a loss for [218]*218his motive in taking effectual measures for that purpose. Accordingly, in June, 1767, he bought of the Landons, and had conveyed to him by deed, the four acres of land now owned by the plaintiffs, with the little dam, and the whole privilege of the stream, from the Long-pond, for the grist mill on the land last aforesaid, or other mills that he might think proper to erect. Immediately after this, he took down the grist mill on the four acres, to assist in rebuilding the mill below, which now is owned by the defendants. Having accomplished this object, and, as the facts demonstrated, not wishing to retain the four acres of land, he, when there was no mill thereon, in March, 1768, sold the said land, by deed, to Jabez Griswold, in fee-simple, with the usual covenants of seisin and warranty, and likewise granted in the deed the privilege of building a mill for the purpose of fulling cloth, commonly called a fulling mill, with the privilege of drawing the water from the Long-pond, as much as should be necessary to carry a good, well-built over-shot fulling mill, at any time when he should have occasion to use said fulling mill. A fulling mill was erected, by Griswold, and used by himself, and afterwards by his heirs; but before 1791, the mill had gone down; when the heirs of Griswold conveyed the four acres to Nathan London, under whom the plaintiffs claim title. After the fulling mill was prostrated, it does not appear, that there was any other erection, until the oil mill was built, in 1799. As early as June, 1768, Matthias Kelsey granted, by deed, the grist mill now owned by the defendants, with the privilege of the stream, and of drawing water from Long-pond; under which grant the defendants have acquired title.
The jury were charged, that the plaintiffs, by means of the little dam, had no right to take the water for the use of their oil mill; and that the defendants had right to prevent the same, doing as little damage as possible to the little dam, so that the water might flow on, in its natural channel.
Two enquiries arise in this case; whether the plaintiffs have title to the water in question for the use of their oil mill; and if they have not, whether the removal of the gate of the little dam was a trespass.
1. From the unlimited nature of the grant, by the Landons, to Matthias Kelsey, he, undoubtedly, had right to erect an oil mill where the one owned by the plaintiffs now stands, and to appropriate as much water, by means of the little dam, as he might think expedient for its use. Had he erected one, and then granted the land, with its privileges and appurtenances, [219]*219the right to the water, which is an incorporeal hereditament, unquestionably would have passed. Nor am I disposed to deny, that a general grant of the land, with its appurtenances and privileges, although there was no mill upon it, would have conveyed the water, as extensively, as it was vested in Kelsey under the deed from the Landons. It must, however, be admitted, that the attachment of the privilege to the land was not indissoluble. Kelsey might legally release the water privilege, or grant it to another, or reserve it for the use of his grist mill below. I think it as little liable to doubt, that the words “ privileges and appurtenances,” may transmit an existing right to water, as they certainly may convey an existing right of way. Whalley v. Thompson, 2 Bos, & Pull. 371. But if the right is not extinguished or released, it must ever be a material question, whether the grantor conveyed it, or reserved it for his own advantage. The intention of the parties is to be ascertained, by a construction of the grantor’s deed, in reference to the subject matter. Had Kelsey expressly reserved the little dam, and the water privilege in his deed, it could not bear a question, whether it was conveyed to the grantees; and as little questionable is it, if the reservation is apparent from a legal construction of the instrument.
The general question is, whether Kelsey, by his deed, granted the privilege of the water for a particular purpose only; so that not only was there a limitation of the quantity, but likewise of the use. I will first attend to the construction of the deed, per se; and then, with reference to the known condition and particular situation of the grantor.
The grant of Matthias Kelsey is of a four acre lot, with the privilege of building a fulling mill, and of taking water, “as much as shall be necessary to carry on a good well-built overshot fulling mill, at any time, when he, the said Griswold should have occasion to use the fulling mill.” That the parties contemplated the erection of a fulling mill, the supply of which, with the requisite water, was the material motive to the grant of the privilege, strikes the mind with great force. Griswold was to have so much water as was necessary, — When? The grant furnishes a precise answer, in the following words; “when he shall have occasion to use the fulling mill.” It would seem, therefore, as if there was a limitation of the use, as well as of the quantity. It is true, there are cases, which appear to consider the quantity, as the material object of such a grant as the preceding, and the use as unimportant. Luttrel’s case, 4 Co. [220]*22086. Saunders v. Newman, 1 Barn. & Ald. 258. Biglow & al. v. Battle & al. 15 Mass. Rep. 313. But in all the cases, it is decided, that although the precise manner of using is not supposed to be defined, yet the application must create no prejudice to the grantor. A
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Hosmer, Ch. J.
The plaintiffs are the owners of a tract of four acres of land, with an oil mill upon it, and likewise of a dam across a stream of water, called the little dam; and they claim, that the defendants tore down the dam, and, by privation of the water, rendered their oil mill useless.
It appears, that the defendants took up the gate at the East side of the little dam, and diverted the water from the plaintiffs’ oil mill, permitting it to run in its natural channel to the defendants’ grist mill; but the plaintiffs’ right to the water, for the purpose of working the oil mill, they deny.
In the trial of the cause, many facts were proved and questions made, which it is unnecessary to notice. I shall only select those, on which the title of the plaintiffs, in my view of the subject, entirely depends.
In the year 1767, James Landon and others owned the land on both sides of the brook before-mentioned, from the Long-pond, whence it issued, to below the plaintiffs’ oil mill, and still further down to the land then owned by Matthias Kelsey, on which a grist mill was erected, now the property of the defendants.
The brook, in its natural course, ran to the grist mill of Kelsey; but the Landons, then the owners of the land on which the plaintiffs’ oil mill is, by means of the little dam and a sluiceway, took the water, which they thought necessary to move a grist mill, erected on the precise site where the present oil mill stands. The importance to Matthias Kelsey of having the controul of the little dam, to prevent the diversion of the water from his grist mill, is so obvious, that no one can be at a loss for [218]*218his motive in taking effectual measures for that purpose. Accordingly, in June, 1767, he bought of the Landons, and had conveyed to him by deed, the four acres of land now owned by the plaintiffs, with the little dam, and the whole privilege of the stream, from the Long-pond, for the grist mill on the land last aforesaid, or other mills that he might think proper to erect. Immediately after this, he took down the grist mill on the four acres, to assist in rebuilding the mill below, which now is owned by the defendants. Having accomplished this object, and, as the facts demonstrated, not wishing to retain the four acres of land, he, when there was no mill thereon, in March, 1768, sold the said land, by deed, to Jabez Griswold, in fee-simple, with the usual covenants of seisin and warranty, and likewise granted in the deed the privilege of building a mill for the purpose of fulling cloth, commonly called a fulling mill, with the privilege of drawing the water from the Long-pond, as much as should be necessary to carry a good, well-built over-shot fulling mill, at any time when he should have occasion to use said fulling mill. A fulling mill was erected, by Griswold, and used by himself, and afterwards by his heirs; but before 1791, the mill had gone down; when the heirs of Griswold conveyed the four acres to Nathan London, under whom the plaintiffs claim title. After the fulling mill was prostrated, it does not appear, that there was any other erection, until the oil mill was built, in 1799. As early as June, 1768, Matthias Kelsey granted, by deed, the grist mill now owned by the defendants, with the privilege of the stream, and of drawing water from Long-pond; under which grant the defendants have acquired title.
The jury were charged, that the plaintiffs, by means of the little dam, had no right to take the water for the use of their oil mill; and that the defendants had right to prevent the same, doing as little damage as possible to the little dam, so that the water might flow on, in its natural channel.
Two enquiries arise in this case; whether the plaintiffs have title to the water in question for the use of their oil mill; and if they have not, whether the removal of the gate of the little dam was a trespass.
1. From the unlimited nature of the grant, by the Landons, to Matthias Kelsey, he, undoubtedly, had right to erect an oil mill where the one owned by the plaintiffs now stands, and to appropriate as much water, by means of the little dam, as he might think expedient for its use. Had he erected one, and then granted the land, with its privileges and appurtenances, [219]*219the right to the water, which is an incorporeal hereditament, unquestionably would have passed. Nor am I disposed to deny, that a general grant of the land, with its appurtenances and privileges, although there was no mill upon it, would have conveyed the water, as extensively, as it was vested in Kelsey under the deed from the Landons. It must, however, be admitted, that the attachment of the privilege to the land was not indissoluble. Kelsey might legally release the water privilege, or grant it to another, or reserve it for the use of his grist mill below. I think it as little liable to doubt, that the words “ privileges and appurtenances,” may transmit an existing right to water, as they certainly may convey an existing right of way. Whalley v. Thompson, 2 Bos, & Pull. 371. But if the right is not extinguished or released, it must ever be a material question, whether the grantor conveyed it, or reserved it for his own advantage. The intention of the parties is to be ascertained, by a construction of the grantor’s deed, in reference to the subject matter. Had Kelsey expressly reserved the little dam, and the water privilege in his deed, it could not bear a question, whether it was conveyed to the grantees; and as little questionable is it, if the reservation is apparent from a legal construction of the instrument.
The general question is, whether Kelsey, by his deed, granted the privilege of the water for a particular purpose only; so that not only was there a limitation of the quantity, but likewise of the use. I will first attend to the construction of the deed, per se; and then, with reference to the known condition and particular situation of the grantor.
The grant of Matthias Kelsey is of a four acre lot, with the privilege of building a fulling mill, and of taking water, “as much as shall be necessary to carry on a good well-built overshot fulling mill, at any time, when he, the said Griswold should have occasion to use the fulling mill.” That the parties contemplated the erection of a fulling mill, the supply of which, with the requisite water, was the material motive to the grant of the privilege, strikes the mind with great force. Griswold was to have so much water as was necessary, — When? The grant furnishes a precise answer, in the following words; “when he shall have occasion to use the fulling mill.” It would seem, therefore, as if there was a limitation of the use, as well as of the quantity. It is true, there are cases, which appear to consider the quantity, as the material object of such a grant as the preceding, and the use as unimportant. Luttrel’s case, 4 Co. [220]*22086. Saunders v. Newman, 1 Barn. & Ald. 258. Biglow & al. v. Battle & al. 15 Mass. Rep. 313. But in all the cases, it is decided, that although the precise manner of using is not supposed to be defined, yet the application must create no prejudice to the grantor. A sound consideration of this principle, would, in general, seem to be at war with the determinations alluded to; for prejudice, when the use is varied, will almost inevitably be the result. Let the principal case under discussion, he recurred to, for illustration. A person grants water sufficient to subserve the use of a fulling mill; and it is claimed, that any other mill may be erected, and receive the water, if it do not take a greater quantity, than would be necessary for the use of a fulling mill. How is this quantity to be ascertained? An oil mill may run during the year; while a mill of the other description may require working during the fall months only. A mill of the former kind, the owner may supply with materials, so as to allow of no cessation in its movement; but the latter is dependant on the public exigencies, and must stop when there is no custom. The unwearied and sleepless vigilance of the grantor, to prevent an abuse of the privilege, is insufficient; as neither he, nor his grantor, can, by possibility, ascertain when the quantity is exceeded, unless the excess be very palpable. This principle of construction, is founded in uncertainty, and must be preeminently a source of litigation. It is much preferable, to let the parties explain themselves, in explicit language, and, at least, not to assume voluntarily as a rule, one that must be productive of controversy, and probably injustice.
Without the expression of a definitive opinion on this subject, I have no doubt, that the condition and situation of the parties, and other collateral facts known to them both, may properly be recurred to, to ascertain their mutual intention. This is not a novel principle; but frequently has been recognized and applied. Courts of law, as well as courts of equity, will admit evidence of the situation and circumstances of the parties, for the purpose of assisting them in putting a construction on a will. Masters v. Masters, 1 P. Wms. 420. Doe d. Barns & al. v. Provost & al. 4 Johns. Rep. 6. See the cases cited 1 Phill. Ev. 417. in note; likewise 6 Cruise's Dig. 158. In the case of the King v. Laindon, 8 Term Rep. 379. evidence was received to ascertain an independent fact, in order to aid in the construction of an agreement.
[221]*221Under the guidance of the preceding principles, I will recur to the condition and circumstances of the parties, at the execution of the deed. Matthias Kelsey was the owner of a grist mill below the little dam, for which the stream from the Long-pond was required. He wanted the water, and he wanted custom. To obtain the former, he made a purchase of the Land-pond of the four acres beforementioned, and of a water privilege; and by this measure, he secured for his grist mill the use of the whole stream. It is a fair presumption, that he had more water than his mill demanded, as he soon sold the four acres, having first destroyed the grist mill erected thereon, and granted as much water as was necessary for a fulling mill. That a mill of this description, in general, requires less water than a grist mill, is indisputable. Thus much Kelsey supposed he could spare, without injury to his mill. But what motive, it may be asked, had he to prescribe the use of the water? The answer is obvious. By this means, he gains a precise standard, to estimate the quantity of water to be taken; but more particularly, he prevented all possible competition with his grist mill, by the erection of one contiguous to him on the land granted to J. Griswold. This, I make no doubt, was the material motive to his contract, and occasioned his permitting a fulling mill, built on the land granted by him, to be furnished with a competent supply of water. The practical construction of the grant harmonizes with this exposition. A fulling mill was soon erected, and remained in use for a number of years; and the oil mill first sprang into existence, in 1799. Livingston v. Ten Broeck, 16 Johns. Rep. 14.
If it be said, the plaintiffs have not erected a grist mill, but an oil mill only, it may be conclusively replied, if they can take the water for an oil mill, they may for a grist mill, because, on this construction, the quantity, not the use, is prescribed.
On the whole, I am clear, that Matthias Kelsey meant to prescribe the use of the water privilege, as well as the quantity of water; and that the residue of the water privilege, he chose to retain in his own hands. It follows, that the plaintiffs have, failed in sustaining their title to the water in question.
2. That the defendants were authorised to remove the dam, doing the least possible damage, in order to enjoy their right in the stream of water, is too obvious to be made a serious question. Sic utere tuo, ul alienum non loedas, is an established principle; and the keeping up a dam across a stream, where the plaintiffs [222]*222had no mill, for the use of which they legally might take the water, was an unlawful act, and injurious to the defendants.
It was not necessary, that the defendants should have proved, that they were actually damnified, by the obstruction of the water; although, if this had been requisite, it appears, with reasonable certainty. If no damage in fact had accrued, the defendants were justified in using the preventive remedy of abating the nuisance; and were not obliged to suspend operations, until there was a deficiency of the water. Nor can the plaintiffs be permitted, for a moment, to obstruct the flowing of a stream, to which, at present, they have no possible claim.
I would not grant a new trial.
Peters, Brainard and Bristol, Js. were of the same opinion.
New trial not to be granted.