Per curiam, delivered by Thompson, J.
The only question litigated between the parties is, touching the right to the waters of the Saghquate creek, for the use of the mills,- now owned and occupied by the appellant. A brief statement of some of the facts, [101]*101thrown into the case, but not controverted, may afford some assistance in ascertaining the truth with respect to those in dispute. It is admitted, that, in the year 1788, the appellant was seised of the lands on the east side' of the Saghquate creek, together with an equal moiety of the creek itself. That Hugh White was seised of the lands on the west side of the creek, together with the other moiety of the creek, and that being so seised, they, together with one Beardsley, built a grist-mill and saw-mill upon the land of the appellant. That a canal was dug for the purpose of diverting some of the waters of the creek to those mills. That the parties continued to occupy them jointly, according to their respective proportions therein, for about three years, when the appellant purchased out the shares of his copartners. The purchase from Hugh White was by parol only, and upon this the-controversy between the parties arises, presenting the following questions for examination. 1st. Whether the appellant ever acquired any right to the waters of the Saghquate creek, for the use of the mills ? 2d. If so, whether that, was a temporary or a permanent right ? 3d. Whether, the purchase being by parol, the respondents can avail themselves of the statute of frauds to avoid it ?
The evidence appearing in the case, is partly written and partly parol, as to the applicability of which, to the subject matter of complaint in the appellant’s bill, some little difficulty and confusion arises. The written testimony, the article of agreement, appears not to have had for its object, the securing of the water to be diverted from the Saghquate creek. It was between White, Wetmore, and Beardsley, and was [102]*102solely for tile purpose of providing for the building of the mills, and fixing the proportion of the respective partic~ therein. The matter of complaint by the appellant's bill, is not for a violation of the articles of ~tgreement, but for an interruption in the use. of the waters of the Saghquate creek, This written agreement might be admissible, as illustrative of the views and intentions of the parties in erecting the mills, and, some measure, explanatory- of the testimony of some of the witnesses; but the right to divert the water must depend upon some other evidence. The bill of complaint, so far as it may refer to the articles of agreement, is to be considered as a history of circumstances leading to the main subjects of inquiry; the right to the use of the water, and the purchase by Wetmore, from TP72ite. The appellant alleges, that he purchased the shares of TVhite. in the mills, to`gether with the pr~viIege of the water, but reposing confidence in the integrity and uprightness of White, he omitted to take a conveyance therefor. This is the subject matter of the complaint, to which most of the testimony on both sides is pointed, and which the appellant alleges was not secured by writ~ ing~
The parol evidence on this subject, Cannot be viewed as explanatory of the written agreement, or as a preliminary conversation leading to a contract consummated by the instrument in writing; but relating, to a distinct and independent subject. An examination, therefore, into the original contract, respecting the water, in connection with the sale of the mills, and a decree bottomed thereon, would not, I think," be travelling out of the case, ora violation of the prin[103]*103ciple,- that the decree must be secundum allegata et probata.
That there was a contract made between White and Wetmore, relative to diverting the water to the mills, is manifest from the testimony in the cause, the acts of the parties, and the confessions of White. The extent of that contract will be hereafter examined. To establish this contract, there is the united, and uncontradicted testimony of three witnesses.
■Lemuel Leavenworth, who was examined both on the part of the appellant and respondents, says, the parties went in the first place, to view the spot where the mills are at present situated; they then viewed the land on White's side, and it was agreed, in conversation, that wherever the mill was erected, “ there the water should go." That John Beardsley, was to determine where the place should be ; and that he determined in favour of the place where the mills now are. To the respondents’ interrogatories, he answered, that he knew of a verbal contract, for appropriating the waters of Saghquate creek, to the use of the mill or mills, to be erected on the same. Amos Wetmore, declared, that he had heard Hugh White say, that wherever the mills should be built, there the water should go. John Beardsley swore, that it was agreed between Hugh White and Wetmore, that wherever the mills should be built, there the water should go. In conformity to this agreement, we find the parties digging a canal, building a dam across the Saghquate creek, and turning the water to the mills.
White, in his answer, I think, impliedly admits, that there had been a contract relative to the water; though he says, the particular plan “for securing it" had not been matured, or carried into effect; evidently, I [104]*104conceive, alluding to its not having been reduced to writing.
If, then, there was an agreement to divert the natural course of this creek, the object clearly was for the use of the mills. The same reason that existed at first, for turning the water, would continue to exist as long as the mills remained. By a sale of the mills, generally, I should, therefore, incline to think the water would pass as an incident to them, without any special provision. A contrary inference would be against every reasonable intendment. Supposing the water thus diverted, had been the only water to supply the mills, would there have been a doubt as to the intention of the parties ? The quantity of water cannot materially alter the case; and, indeed, it was not denied on the argument, but that the appellant had acquired a right to the use of the water, co-extensive with the duration of the mills first built.
But it is not necessary to say, the right to the water passed, as an incident to the mills, in the sense above-mentioned ; or, that the appellant acquired this right, at the time he purchased the mills. It was, I think, amply secured by a prior contract; and this will account, for the language of some of the witnesses, and the guarded expressions in the respondents’ answer.
Anna Barnard, a witness on the part of the respondents, testified, that she was present at the time of the sale, and that White sold “ his right and interest” in the mills, and delivered up his right to the mill and mill-irons, but does not recollect that any thing was said respecting the waters of the creek. The reason of this, probably, was, because the parties considered [105]*105the use of the waters provided for by the former contract, made before the mills were erected. Hugh White, in his answer, admits that he sold his shares in the mills, to the appellant, for the consideration of seventy-live pounds, and that the purchase-money has been duly paid.
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Per curiam, delivered by Thompson, J.
The only question litigated between the parties is, touching the right to the waters of the Saghquate creek, for the use of the mills,- now owned and occupied by the appellant. A brief statement of some of the facts, [101]*101thrown into the case, but not controverted, may afford some assistance in ascertaining the truth with respect to those in dispute. It is admitted, that, in the year 1788, the appellant was seised of the lands on the east side' of the Saghquate creek, together with an equal moiety of the creek itself. That Hugh White was seised of the lands on the west side of the creek, together with the other moiety of the creek, and that being so seised, they, together with one Beardsley, built a grist-mill and saw-mill upon the land of the appellant. That a canal was dug for the purpose of diverting some of the waters of the creek to those mills. That the parties continued to occupy them jointly, according to their respective proportions therein, for about three years, when the appellant purchased out the shares of his copartners. The purchase from Hugh White was by parol only, and upon this the-controversy between the parties arises, presenting the following questions for examination. 1st. Whether the appellant ever acquired any right to the waters of the Saghquate creek, for the use of the mills ? 2d. If so, whether that, was a temporary or a permanent right ? 3d. Whether, the purchase being by parol, the respondents can avail themselves of the statute of frauds to avoid it ?
The evidence appearing in the case, is partly written and partly parol, as to the applicability of which, to the subject matter of complaint in the appellant’s bill, some little difficulty and confusion arises. The written testimony, the article of agreement, appears not to have had for its object, the securing of the water to be diverted from the Saghquate creek. It was between White, Wetmore, and Beardsley, and was [102]*102solely for tile purpose of providing for the building of the mills, and fixing the proportion of the respective partic~ therein. The matter of complaint by the appellant's bill, is not for a violation of the articles of ~tgreement, but for an interruption in the use. of the waters of the Saghquate creek, This written agreement might be admissible, as illustrative of the views and intentions of the parties in erecting the mills, and, some measure, explanatory- of the testimony of some of the witnesses; but the right to divert the water must depend upon some other evidence. The bill of complaint, so far as it may refer to the articles of agreement, is to be considered as a history of circumstances leading to the main subjects of inquiry; the right to the use of the water, and the purchase by Wetmore, from TP72ite. The appellant alleges, that he purchased the shares of TVhite. in the mills, to`gether with the pr~viIege of the water, but reposing confidence in the integrity and uprightness of White, he omitted to take a conveyance therefor. This is the subject matter of the complaint, to which most of the testimony on both sides is pointed, and which the appellant alleges was not secured by writ~ ing~
The parol evidence on this subject, Cannot be viewed as explanatory of the written agreement, or as a preliminary conversation leading to a contract consummated by the instrument in writing; but relating, to a distinct and independent subject. An examination, therefore, into the original contract, respecting the water, in connection with the sale of the mills, and a decree bottomed thereon, would not, I think," be travelling out of the case, ora violation of the prin[103]*103ciple,- that the decree must be secundum allegata et probata.
That there was a contract made between White and Wetmore, relative to diverting the water to the mills, is manifest from the testimony in the cause, the acts of the parties, and the confessions of White. The extent of that contract will be hereafter examined. To establish this contract, there is the united, and uncontradicted testimony of three witnesses.
■Lemuel Leavenworth, who was examined both on the part of the appellant and respondents, says, the parties went in the first place, to view the spot where the mills are at present situated; they then viewed the land on White's side, and it was agreed, in conversation, that wherever the mill was erected, “ there the water should go." That John Beardsley, was to determine where the place should be ; and that he determined in favour of the place where the mills now are. To the respondents’ interrogatories, he answered, that he knew of a verbal contract, for appropriating the waters of Saghquate creek, to the use of the mill or mills, to be erected on the same. Amos Wetmore, declared, that he had heard Hugh White say, that wherever the mills should be built, there the water should go. John Beardsley swore, that it was agreed between Hugh White and Wetmore, that wherever the mills should be built, there the water should go. In conformity to this agreement, we find the parties digging a canal, building a dam across the Saghquate creek, and turning the water to the mills.
White, in his answer, I think, impliedly admits, that there had been a contract relative to the water; though he says, the particular plan “for securing it" had not been matured, or carried into effect; evidently, I [104]*104conceive, alluding to its not having been reduced to writing.
If, then, there was an agreement to divert the natural course of this creek, the object clearly was for the use of the mills. The same reason that existed at first, for turning the water, would continue to exist as long as the mills remained. By a sale of the mills, generally, I should, therefore, incline to think the water would pass as an incident to them, without any special provision. A contrary inference would be against every reasonable intendment. Supposing the water thus diverted, had been the only water to supply the mills, would there have been a doubt as to the intention of the parties ? The quantity of water cannot materially alter the case; and, indeed, it was not denied on the argument, but that the appellant had acquired a right to the use of the water, co-extensive with the duration of the mills first built.
But it is not necessary to say, the right to the water passed, as an incident to the mills, in the sense above-mentioned ; or, that the appellant acquired this right, at the time he purchased the mills. It was, I think, amply secured by a prior contract; and this will account, for the language of some of the witnesses, and the guarded expressions in the respondents’ answer.
Anna Barnard, a witness on the part of the respondents, testified, that she was present at the time of the sale, and that White sold “ his right and interest” in the mills, and delivered up his right to the mill and mill-irons, but does not recollect that any thing was said respecting the waters of the creek. The reason of this, probably, was, because the parties considered [105]*105the use of the waters provided for by the former contract, made before the mills were erected. Hugh White, in his answer, admits that he sold his shares in the mills, to the appellant, for the consideration of seventy-live pounds, and that the purchase-money has been duly paid. But says, “ at the time of his relinquishing his shares, no mention was made of any right, interest or privilege, in the waters of the said creek, nor was any such right or privilege included in the said contract ofsale, of the said mill.” With truth, probably, he might so declare, because it was not necessary to say any thing on the subject, or include it in the sale, it having been provided for by another agreement. This he does not undertake to deny. He only says, the plan was not matured and carried into effect; by which I understand him to mean, as I before observed, that no writings were entered into j deeming them necessary to mature and perfect the contract.
I the more readily adopt this construction of this part of the answer, because it reconciles it with the evidence. For, if White meant to be understood, that no contract whatever, had at any time been made, respecting the water, he stands contradicted by three witnesses. I consider the effect of this agreement, as an appropriation of the water to the use of the mills ; that it thereby became, in some measure, an appurtenance to them; and that, under such circumstances, a grant of the principal subject would pass the water, as an incident.
The next inquiry is, whether this contract vested a permanent, or only a temporary right to the use of [106]*106the water ? If I am correct in the construction given to 'White’s answer, it is not such a denial of the contract, as to bring it within the rule of equity, making it necessary to establish it, by the testimony of more than one witness. That rule can only be applied to cases, where the answer is a clear and positive denial of the fact. 1 Fez. 66.
[107]*107It is said, however, that Bearcisley has so contra-dieted himself, with respect to the consideration paid by Wetmore to White, for the water, that he is unworthy of credit. This allegation, I do not think well founded. In his answer to the appellant’s interrogatories, on this first point, he says, that White was to have one-fourth part of the mill, on account of his allowing the water to be turned from the main creek, for the use of the mill forever, and for digging, draining and turning the water; and, in consideration of other things mentioned in a certain written contract. In his answer to the respondents’ interrogatory, he says, the consideration that Wetmore paid White, for the use of the water was, that the waters overflowed the lands of Wetmore, and that White was to have one-fourth part of an acre of land forever, with the mills erected thereon; one-fourth of the grist-mill, and one-third of the saw-mill, and that he supposed the said contract was completely finished and carried into effect.
The latter examination is more full and circumstantial than the former, but is not, I think, so essentially variant, as to discredit the witness. There is, to me, internal evidence arising from the nature of the establishment, and the acts of the parties, fortifying the conclusion, that it was the intention of the parties, that so much of the water of the Saghquate creek, as was necessary for the use of the mills, should be permanently appropriated to that object. A contrary conclusion, would lead to great doubt and uncertainty. If the appropriation was considered as coextensive with the necessity that at first existed for mills at that place, its termination would depend upon mere matter of opinion. If, with the duration of the mills first erected, doubts might arise to what [108]*108extent repairs might be made, for the purpose of continuing the old mills; and to say, that they should be suffered to go to decay, without any repairs, would be doing violence to the understanding of the parties. Public accommodation, and private emolument, were probably the primary inducements for building the mills, and diverting the water ; the same reasons, for any thing that appears, now exist for their continuance.
The conduct of White, in not disclosing to Wet-more, at the time of selling the mills, his claim of restoring the water to its original channel, his sleeping so long upon this claim, and permitting the appellant to expend his money, in repairing and rebuilding the mills, were unconscientious, and form strong grounds for the interposition of a court of equity. 2 Atk. 83.* It is true, the respondent, Hugh White, swears, that he verily believes, he apprised Wetmore of his claims, before the mills were taken down or destroyed. This, I do not think entitled to much weight. If the fact would warrant it, he ought to have sworn positively, and not merely as to his belief. Besides, it is rendered highly improbable by his acquiescence for five years together. Much was said on the argument, respecting the injury, which the diversion of the water would occasion to the respondents’ meadows, and, much of the testimony in the cause was pointed to that object. This testimony is vague, uncertain, and, in my opinion, irrelevant. If testimony of this kind was proper at all, as furnishing a clue to the intent and understanding of the parties, it should have been confined, io the time when the contract was made; and on that subject, we have the estimation of White himself; for it appears, from the testimony of Beards[109]*109ley, that he considered the water of so little use to him, and the establishment of the mills so unpromising, in point of profit, that he offered to give the appellant and Beardsley the use of the water forever, together with a barrel of pork, if they would build a grist-mill and saw-mill alone, and he to have no concern with them.
The appellant’s claim, resting altogether upon parol contracts, it becomes necessary to examine, whether any obstacle to relief is interposed by the statutes for the preventions of frauds. I think there is not. It is an established rule in equity, that a parol agreement, in part performed, is not within the provisions of the statute. 1 Fonb. 182, and the cases there cited. 3 Atk. 4.* To allow a statute, having for its object the prevention of frauds, to be interposed in bar of the performance of a parol agreement, in part performed, would evidently encourage the mischiefs the legislature intended to prevent. Money laid out in improvements, is considered a part execution of a contract. Pow. on Contr. 296. So, also, possession, delivered in pursuance of an agreement, is such a degree of performance, as to take a contract out of the statute. Ibid. 299. Payment of the consideration money, has always been held as a part performance. 3 Atk. 4.†
The case before us, I think, clearly falls within these rules. The consideration money has been paid, possession taken, and valuable improvements made. I can therefore see no objection against granting the appellant such relief, as will quiet him in the permanent enjoyment of the water, for the use of the mills, to the extent the same was used and enjoyed, at the time he purchased them from the respondent, Hugh [110]*110White. This is sufficiently certain and definite, for a decree for a specific performance.
I am, therefore, of opinion, that the decree of the court of chancery ought to be reversed.
Judgment of reversal unanimously.
Le Neve v. Le Neve.