Nesmith, J.
The defendant first answered the original bill of the plaintiffs and its several material allegations, under oath, and again filed a subsequent answer to plaintiffs’ amended bill, wherein he denied many of the facts and allegations contained in the said amended bill, admitted some and qualified others, as will appear by reference to said bill and answers. To sustain the allegations of their bill and answers, and as explanatory of their several views or theories, the parties have severally furnished a voluminous mass of testimony, showing the original construction of the old Union Bridge dam, as early as 1804, its occupation, ownership, and the usages under it, the several mills erected on it, the water used to carry on these mills and the effects of the rise of water, occasioned by the dam, upon the lands and privileges of owners above it.
Then we have the continuous history of the Pearson dam, erected near the old one, under the immediate superintendence of the experienced architect, John Clark of Franklin.
We find the second dam erected, or renewed, in the fall of the year 1828. The Pearson dam was called a rolling dam, sustained by box, cribs, spiling, planking, &c., intended to be compact and close. It contained, also, in addition to the ordinary flumes necessary to carry two saw mills, a grist mill with a fulling mill, a wasteway with movable plank or slabs therein, and of the width of 80 feet. The two dams generally, from the beginning, had flash boards located on their permanent parts, or on the tops thereof, which were also movable. The height of the water above the dam was generally regulated by the owners and occupants according to their wants, by the use of more or less of these flash boards on the dam, or planks in said wasteway. The flash boards, and sometimes more or less of the planks in the waste-way, were often removed in times of freshets, or high water, and again replaced as the water subsided, and were retained in use in all times of [100]*100low water. The surface of the Pearson dam, erected in 1828, was uneven, and the master workman, Clark, testified that after the dam was finished, he caused flash boards of the width varying from 12 to 16 inches to be placed on the top of the dam, and that it then required six days and nights to raise the water so as to flow one foot over the dam. The general current of the testimony of both sides establishes the fact, that flash boards have been usually kept on the top of the Pearson dam of the width varying from 6, 10, 12, 15, 16 and even 20 inches, according to the structure or conformation of the top of said dam, and the supply of water kept above it, up to the year 1846, when the plaintiffs purchased the privilege, and took possession thereof. And from this time, especially since August, 1852, plaintiffs have labored to keep up the water in said dam by means of the use of flash boards, at least 15 inches above the top of the permanent part thereof. And the defendant complains that the plaintiffs have so kept up their dam as to cause .the water above in SanborntonJBay to flow his lands, and the cellar of his store, &c., to his injury, and in violation of established rights and usages, before acquired, and of the contracts of the parties. It also appeared in evidence, that, on the 15th day of July, A. D. 1859, defendant commenced his last suit, claiming special damages of the plaintiffs, for injuries so sustained, in. consequence of this flowage, as will appear by his writ which is in evidence in the case. The plaintiffs, upon application, obtained from the Chief Justice of this Court a tem-r porary injunction of this suit, until an examination could be made, and a decision had upon the several matter's embraced in plaintiffs’ said bill and defendant’s answers thereto, and the other evidence submitted in the case, especially upon the consideration of the rights of the respective parties, arising out of their mutual contracts of August 30th, A. D. 1852, and the subsequent deed of conveyance from the defendant to plaintiffs, made and executed on the 26th day of September, 1853, and the several negotiations connected therewith, illustrative of the meaning and intent of the parties thereto. The plaintiffs allege, that, by virtue of said settlement, and deed of conveyance, it was intended by the parties, that the water-mark, mentioned in said deed, of 20 inches on the Eager Bock, was to be equivalent to 15 inches of water on the permanent part of the Pearson dam, under the limitations recited in said deed, and that the settlement was made upon this basis. All which, plaintiffs say, is made apparent from the deed itself, and from the declarations, admissions and acts of the parties thereto, and from the other evidence in the case. The aforesaid deed from the defendant, among other recitals, contains the following specific stipulation: "And the said Perley also does hereby grant to said company, in manner aforesaid, the right to flow any lands which he owns, and which may be flowed or affected by said company keeping the water by their dam at Union Bridge twenty inches higher than Eager Bock, so called, near Meredith Bridge, provided that said company shall not keep the water higher than said point — twenty inches above said Eager Bock — whenever they can keep the same down to said point by removing the flash boards from said dam, and by opening their wasteway, which shall be enlarged [101]*101to the width of sixty feet.” In looking at the aforesaid special pro vision, in connection with some other expressive language therein, the parties seem to have been contracting for two leading objects: First, to settle permanently the water rights of the parties, and especially the use of the water at and by means of the dam: Second, so to regulate the water, by enlarging the capacity of the wasteway, and by regulating the flash boards thereon, that plaintiffs might use the waters above, in the most practicable manner as a reservoir, providing greater facilities for its passage through their dam, and with the least prejudice to the rights of the defendant. To these apparent leading objects of this deed of release was superadded the third, which was finally to adjust two suits at law in favor of the defendant against the plaintiffs, which were then pending, and had been sometime litigated at large expense, and all other claims for damages for alleged injuries previously sustained by defendant to his lands adjacent to Sanbornton Bay and his other lands and privileges, by means of the improper use and management of said dam. It was important to the parties to adjust satisfactorily their several conflicting rights, so far as the past was concerned, and if possible, securely for the future. Hence, to .obviate difficulties likely to hereafter arise, lands were conveyed by defendant, reservations made, especially 60 feet of wasteway in plaintiffs’ dam was obtained by defendant, where only 30 feet was provided before. This was to be prepared at plaintiffs’ expense; and the plaintiffs say, by the interpretation put upon the language of said deed by said defendant, in consequence of making the aforesaid Eager Rock the ruling water mark to test the height of the water in said Bay, they are likely to suffer, more especially if the survey of Win. P. Crocker be adopted as the true trial test of the comparative standard height of water at said rock, and at said Pearson dam. Now, if there have been introduced into said deed any material stipulations, or ruling monument, upon principles plainly contrary to the real intention of both parties, and under a material mistake, then the deed should be reformed, and such mistake should be corrected. Judge Story says, " to allow a mistake to prevail under such circumstances, would be to work a surprise or fraud upon both parties, and certainly on the one who is to suffer.” 1 Story Equity, secs. 155, 156, and 157.
We propose briefly to examine the facts of the case, and the rights of the respective parties at the time of the conveyance, and ascertain, if possible, their legal position.
The plaintiffs start with the proposition, that the settlement and conveyance were upon the express grounds and understanding, that the water mark on the Eager Rock, being the monument stated in the deed as limiting the height of the water to twenty inches above said point, was, by the parties made and considered equal to 15 inches on the top of the Pearson dam. Let us examine the deed itself, and obtain its true construction, in connection with the other controlling facts of the case.
The familiar rule of construction, incident to all deeds is, that such a rule of interpretation must be given to the deed, as will most effect[102]*102ually carry out the intent of the parties. Jackson v. Blodgett, 16 Johnson, 172. When the language used is susceptible of more than one interpretation, the Court will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and the subject matter of the contract, and all the provisions and expressions of the instrument. 2 Cowen 195; Willes’ Rep. 332: 13 Peters 89; 5 Watts 34.
Deeds are to be construed with refez’once to the actual rightful state of the property at the time of their execution. Property conveyed passes with all its incidents, privileges azzd easements belonging to it at the time of the conveyance. Dunklee v. Wilton Railroad, 24 N. H. 497; Seavey v. Jones, 43 N. H. 441; Thompson v. Banks, 43 N. H. 540. Where the instrument is aznbiguous or doubtful on its face, the court may resort to parol, extrinsic evidence, to remove doubt. Gerrish v. Towne, 3 Gray 88; 1 Greenleaf Evid., sections 293 and 286. From the extract of the deed before referred to, it appears to us, the conveyance was evidently based upon the understanding, that the plaintiffs were to ezzjoy and regulate the waters of the river and bay by means of their dam, and by zzo other ageney, and in order to raise the water 20 inches on the Eager Rock, although nearly six miles off, it must be done by means of the plaintiffs’ dam with its Í5 inches of flash boards on the top. The deed, therefore, implies the existence of the dam, always operating so as to produce the aforesaid continued desired reszzlt; and it also implies the pre-existence of the dam, because from the testimony of Clark and others, it required, with the use of flash boards, from four to six days to raise the water about a foot in the large bay above. Hence, the dam, as a cause, is presumed first to exist, in order to produce the legitimate effect of raising the water at Eager Rock. Tlze dam is to be there, with all its justly acquired or customary rights or easements, both for the purpose of carrying on the mills, for which it was originally ezected, and for the new and legitimate purpose of establishing a reservoir, under the limitation of widening the wasteway, and regulating the flash boards on the dam and the plank in the wasteway, so as to keep down the water on the Eager Rock whenever practicable, iznder the application of a reasonable use of the means indicated by the contract. The widening of the wasteway would enable the occupazzt of the dam to let off a greater quantity of water in a shorter time, therefore., was intended to be protective of the defendant’s interests. In the same manner, by discharging a greater quantity of water in a shorter time, it -would pz-ove to this extent useful as a reservoir to the plaintiffs’ works below. Such may be presumed to be the-intent of the parties in introducing this new limitation, to be practiced upon at plaintiffs’ dam; atid, subject to the wise use of this regulating limitation, now introduced for the first time, the plaintiffs’ dam was to be the regulator of the water at defendant’s monument, and everywhere above it izz in the bay. The conveyance also speaks plainly of flash boards to be removed from the dam at certain times, in order to reduce the water to a certain standard point. This, of course, would be in times of high water, when they were to be removed. This language [103]*103plainly implies the customary use of flash boards on the dam, subject to the new modified use, now adopted under the contract of the parties.
Again, the cotemporaneous writings, made between the parties at or near the time when the deed was executed, relating to the same subject matter arc admissible in evidence. 1 Greenleaf’s Evid. section 283, and authorities in note. The court will also call in aid the acts done under the contracts and deed as a clue to the intention of the parties. The common use and possessory acts give an interpretation to the instrument, especially to ancient grants. 16 Johnson, 22; 3 Atkins, 576; 10 Vesey, 338; 7 East, 199; 4 East, 327; 8 Bingham, 181; French v. Cohart, 1 Comstock, 96.
Look at the acts of Mr. Bell, the agent of the plaintiffs, after negotiating the settlement of August 30th, 1852. On completion of that contract with defendant, he immediately instructed the engineer then in his employment, Ham, to have the flash boards so made as to keep the water fifteen inches above the top or permanent part of the Pearson dam, and no more. Mr. Bell also instructed said Ham to procure Daniel K. Smith, a civil engineer and surveyor of lands, to take his levelling instruments and proceed to Union Bridge, and find some stone or monument above and near said dam, and establish a high-water permanent mark, which was to be fifteen inches above the top of the dam. This standard mark was established, according to the order, and the flash boards were located according to the direction then given, in the same autumn after the settlement.
The mark established was a cross cut into a stone, on the Gilmanton shore, above the dam and near to it, and there yet remains, as the result of the order then given, being fixed, as Ham states, fifteen inches above the permanent part of the dam. The same witness testifies, that, pursuant to orders from the same source, the wasteway was widened to to the width of sixty feet, according to the terms of the aforesaid agreement of the parties. This work was executed on or before January, A. D. 1853. He also testifies that he had orders from Mr. Bell, which he caused to be executed, that when any extra opening of the wasteway of the dam at Lake Village was made, then he was to go directly to Union Bridge, and have a corresponding opening made there, so as to keep the water within fifteen inches above the top of said dam. It is true, it is not in evidence, that the defendant was present when the aforesaid acts were done at the plaintiffs’ dam; but the original contract of August, 1852, shows, that defendant was to occupy, under a lease, the Atkinson dam and the adjacent premises, up to March, 1856, which were situate but a short distance below the Pearson dam, and that he had means of obtaining knowledge of' the proceedings of Mr. Bell, and that he acquiesced in them, making no complaint during his occupation, except that, in 1855, on one occasion, he did complain to Mr. Bell, that the water was too high, or that he, (Mr. Bell,) was keeping it too high. We think it would not be unfair to use the contract "B,” which was signed by both parties, as evidence of the plaintiffs’ expectation and belief, as to the rights to be acquired under said contract, and that Mr. Bell considered fifteen inches on the top of the dam, as the standard le[104]*104gal height, to which the water might be there raised and kept; because we find his acts and declarations, while alive, all tending in the same direction to sustain this position. It was in evidence, that a suit was brought by those interested in the Avery dam privilege, in the name of James P. Morrison against the plaintiffs for alleged injury sustained at the Avery dam, and, that this action was tried by the jury, in the year 1851, and that defendant also had an action tried in the year 1849, which was for a claim of damages against the plaintiffs for the alleged fiowage of his lands, &c., adjacent to Sanbornton Bay; by reason of plaintiffs’ said dam.
In the former case, there was a verdict for the plaintiffs. In the latter, there was no verdict, the trial resulting in a disagreement of the jury. Mr. Bell was counsel for the present plaintiffs in' both of said suits. It ivas in evidence, that, after the verdict in the Morrison case, the water was reduced by the order of Mr. Bell, at the Pearson dam, by the removal of the flash boards, and by their different management, from the height of seventeen inches to fifteen inches, and no more. This regulation was made prior to August, 1852, and was indicative of the plaintiffs’ claim prior to that time. As to the defendant’s knowledge and admissions on the point, it was shown in evidence from the defendant, that Mr. Bell informed him, when inviting him to sign said contract of August 30th, 1852, that the top of the rolling or permanent part of the Pearson dam was 4 2-5 inches higher than the top of the Eager rock, and that this fact appeared from the actual survey of engineer Daniel K. Smith, which had been used in the said Morrison trial, and that twenty inches on the said Eager Bock would Ire equal to fifteen inches on the Pearson dam. Defendant admits in his deposition that Mr. Bell asked for twenty-four inches to be inserted as the height on the Eager Bock, but that he declined to grant the request. Again, defendant docs not insist that he had any other preference for the Eager Bock as a standard monument, in his contract or deed, except that it was more accessible to him, being near his residence in Laconia Village, and was a monument with which he had been familiar from his youth, and because lie considered it of a more permanent character than any one at the dam. (See-answers to interrogatories 196 and 203 in his deposition.) Such were the reasons assigned by defendant for preferring the rock to the dam: The table of admeasurements, which was prepared by the said Smith, was, by agreement of the parties, used as evidence in this case, being the same used on the Morrison trial, as we understand. This furnishes Smith’s results of the relative comparative height of the top of the Pearson dam with the top of the Eager Bock. And the evidence is very conclusive that this table formed the ruling guide for the settlement of these relative heights, by the respective parties to the contracts.
We are not called upon to vouch for the authenticity or correctness of the engineer Smith’s survey. It is enough that both parties appear to have adopted this .survey, supposed to have been correct, as the basis of their settlement, in adjusting the respective heights of the water, both at the dam, and at the Eager Bock. We hear of no other measure or [105]*105test being referred to by either party. Both parties would, therefore, be bound to stand by what they reasonably supposed to be correct; and if, through any error or miscalculation of the engineer, a mistake had been committed, injurious in its consequences to one of the parties, then equity will interpose and come to the relief of such suffering party. The rules of equity require that such mistake shall be clearly made out. The defendant does not ask that plaintiffs should sacrifice any- right before enjoyed, unless, perhaps, he might calculate upon a more speedy reduction of high water, when injurious to him, by the removal of flash boards, and the like removal of plank from the wider waste way in plaintiffs’ dam. While defendant may be considered as deriving some advantage in this direction, he must be presumed, in consideration of the liberal compensation made and received by him, as yielding on his part: some advantages to the other side. Hence, in the experience of the* parties, there would be times of freshets, or when the plaintiffs, in the exercise of their reservoir rights, would naturally let out, from- their dams above, quantities of surplus water to supply their wants below, when the plaintiffs, under a vigilant and reasonable exercise of their rights and duties, must open their wasteway, and remove more- or less of the flash boards from their dam, so as to let off, as soon as. possible, their .redundant waters.
All this is to be done consistently with plaintiffs’ former and- recently acquired usages, easements or agreement, and upon the implied covenant, that plaintiffs were not to lose any of their water privilege-, nor any of their head and fall at their dam, but to be consistent with all rights before enjoyed. And the parties must be expectedt. give a reasonable time for the exercise of the several duties- and- obligations- recently imposed. Sanbornton Bay furnishes an area of more than eleven square miles. The regulation at the dam must be- had with due reference to the quantity of water, and the time necessary for it to- spread over this large surface of the bay, and, of course, with a dee regard to the natural obstruction at the outlet of the bay, above Union-Bridge, or the sandbar located there, and the artificial obstructions occasioned by the abutments and piers of the Union Bridge, narrowing- greatly the channel of the river at that point; also, with a proper- regard to. the general direction and operation of the wind, all combining to render the task of regulating the water at the dam- both d'elieate and difficult.
In this connection, the proofs arising from admeasurements of Edwards and others of the depth of the water on Eager block, as made at different times, must not be disregarded. From. its. location, being at the termination of the river and at the commencement of the bay, it is-very obvious, from the facts shown by these different admeasurements, that, in times of freshets or high water, the water tends to pile up at the head of the bay, and that considerable time must- necessarily be required for it to spread out on the aforesaid- large surface, before it will obtain its natural level. This evidence must be weighed with that other fact, furnished by the engineer, Crocker, that, from Eager Bock for the distance of about five miles- below, there is less than one inch of foil in. [106]*106the bay. Experience and practical skill would necessarily be required to, give all parties in interest their just legal advantages.
It is urged in argument, that if the dam were entirely removed, still defendant might suffer from the obstructions furnished by the sandbar and the bridge. We need not stop to inquire how this might be, as it must be understood, this contract was made rvith reference to the fact, that the dam has been in existence for a long time, and still must continue, to be u.sed under the influence of these disturbing obstructions. That the defendant acted upon the full knowledge of Smith’s survey cannot be doubted, by reference to interrogatory 40, and answer there given, in his deposition of 186-1, also to question and answer 196 of his second deposition. Interrogatory 40 is thus expressed : "Do you understand that the top of Eager Pock, and the top of the dam (meaning the Pearson dam) are nearly on the same level? ” Ans. "I have the impression that the dam, without the dashboards, is on a level with the top of Eager Pock, or nearly so.”
Defendant, again says, in answer to said interrogatory 196, in said second deposition.of defendant, that "Mr. James Bell said, that by Smith’s survey fifteen inches on top of the darn a vas three-fifths of an inch lower than twenty inches on Eager Pock, or words to that effect, and that it would be more convenient for them; therefore, he Avas in hopes I would agree to it. It would be better for me as the point was lower.” Defendant declined to agree to it. Therefore, from the foregoing evidence it is very manifest the parties both acted Avith the full knowledge of Smith’s survey. Again, that it could not have been the just expectation of the defendant by -the settlement made to abridge the rights of plaintiffs, as before enjoyed, may be ascertained by his answer to interrogatory 332, in his second deposition: Int. " When said deed Avas Avritten had you any idea that said dam was to be in height, in any way changed to correspond Avith the water mark on said Eager Pock, twenty.inches above it?” Ans. "No, not that I know of.” See also, interrogatories 264, 265, 266 and 267:
Interrogatory 264. " What did you understand at the time, as to the right of the company to keep flash boards on the dam?” Ans. " Well, I had no particular understanding about it. They had been in the habit of keeping flash boards on, Avhen the Avater was Ioav, when there Avas.not a freshet. I supposed they would keep them on Avhen they did not keep the Avater twenty inches above Eager Rock.”
Interrogatory 265. "Did you understand by said settlement, that said company was getting the right in Sanbornton Bay any higher than they might formerly do ? ” Ans. " I supposed they were, so far as I Avas concerned in relation to those lands named in the agreement.”
Interrogatory 266. " How much higher ? ” Ans. " Cannot say.”
Interrogatory 267. " State as near as you haA’e any means of telling.” Ans. " Well, it Would be a matter of opinion about it. I could guess that 20 inches over Eager Rock would make it about a foot more than they had a right to keep it formerly, perhaps more.”
There are many other parts of defendant’s testimony, tending to show that, in consideration of the liberal price paid and accepted by him, he [107]*107did not expect to gain to himself rights before enjoyed by plaintiffs, but to surrender some heretofore enjoyed by himself, as a permanent gain to plaintiffs. On this part of the case, see defendant’s statements, that he ever afterwards expected that fifteen or twenty acres of his lands adjacent to the bay would be seriously affected or injured by the fiowage by means of plaintiffs’ dam. Vide interrogatories and answers in deposition, Nos. 271, 272, 273, 279, &c., as indicative of what defendant’s reasonable expectations were.
The most manifest object of the settlement was to adjust permanently disputed rights. Hence, both the written contracts and the deed show that defendant’s two suits at law then pending in court were arranged according to the terms agreed upon. By reference to the writs of defendant which were put in evidence in the case, it will be seen that the defendant had complained of flowage upon his lands to an extent equal to two feet, as unjustly caused by plaintiffs’ dam. Admitting defendant’s actual claim, upon his proof, to be far less, still it was an object of great consequence satisfactorily to adjust these disputes, and all other existing causes of a similar nature, and forever bar all similar future complaints, arising from this source.
The plaintiffs, then, for a good consideration, purchased of-the defendant the right to flow his lands under the limitations of the contracts, also settled the suit at law, and, by the terms of paper marked " E,” one of the actions was to be continued in court so long as that plaintiffs’ rights should ripen, and be confirmed beyond the period of prescription, or the statute of limitations applicable to the Pearson dam.
The defendant, or those claiming under him, would, of course, be hereafter barred from setting up against his own acts and contract any claims thus surrendered. The doctrine of equitable estoppel applies here not only to the lands then owned by defendant, but would also apply to the same extent to any afterwards acquired by him which might be flowed or injuriously affected by plaintiffs’ dam, as used at the time of said settlement.
Again, we are inclined to think the defendant puts a too limited construction upon the deed of September, 1853; the reservation therein contained, stipulating for the lease of the premises conveyed to plaintiffs. The language of the limitation is as follows, viz : " Subject, however, to the right of said company to discharge water from their reservoirs above said premises, as they may have occasion.” . The defendant says that this right, granted to plaintiffs, terminated with his lease, which expired in March, 1856. We are not aware that such a construction as is contended for by the defendant should be applied to this part of plaintiffs’ deed. The language does not necessarily limit the time to March, aforesaid, or any other particular time, when plaintiffs may discharge water from their reservoirs above said premises, meaning the premises conveyed ’by defendant. One object of the conveyance was unquestionably to regulate the water with a view to the creation or enjoyment of the same as for reservoirs. It would be unreasonable to restrict the use of this privilege to so short a time as to render the grant comparatively useless.
[108]*108In all cases of doubt raised by the language of tbe deed, that construction is to be applied, which is most favorable to the grantee. Therefore, we think that for all future time, the premises described in said deed are to be enjoyed, subject to the right of said company (or their successors) to discharge water from their reservoirs above, as they may have occasion. And, in this connection, it may reasonably have been intended by the parties to the deed, that the wasteway should be so enlarged as to discharge said water above, for the mutual advantage of both parties; both parties to receive benefits by the introduction of a new privilege or easement into the Pearson dam. From the foregoing, it will be seen that we derive a knowledge of the true intent of the parties to this conveyance :
First, From an examination and a fair construction of the language of the deed:
Second, From the examination of the cotemporaneous papers, or contracts of the parties :
Third, From the acts of the parties, done under the deed :
Fourth, From the admissions of the parties to the deed :
Fifth, From other extrinsic, oral proof, explanatory of the case, illustrating the true intentions of the parties, their position, and the subject matter of the contract, and relieving the deed of the defendant from doubt and ambiguity.
From these sources of light, we come to the conclusion, that the deed of the parties was executed upon the basis, that fifteen inches of water on the top of plaintiffs’ permanent dam was then considered equal to twenty inches of water on the Eager Eock, or nearly so. Therefore, that plaintiffs should not take their dam down, except the water is raised more than fifteen inches above the top or permanent part thereof. And we find from the subsequent survey of Wm. P. Crocker, an experienced engineer, and the comparative admeasurements caused by him and others to be made, testing the relative heights of the water at different times, both at the Eager Eock and'the plaintiffs’ dam, that a material variance was found to exist between Smith’s survey and said Crocker’s, and to the prejudice of the plaintiffs. We are not called upon to say what will be all the legitimate consequences of the parties’ contracts, or whether Crocker’s survey is more to be relied upon than Smith’s.
We find, however, that the parties, when they made their contract and deed, then rightly supposed Smith’s survey and admeasurements were correct, and were guided by them, and that plaintiffs, on their part, are now, under the proof before us, entitled to have the deed reformed according to the prayer of their bill. The defendant, however, having heretofore commenced his said suit at law, which is pending-still, and which was temporarily enjoined by the Chief Justice of this Court; and the defendant, having denied, in his answers, that plaintiffs have in all respects conformed to the spirit and just obligations of their contract and settlement, but have failed in several particulars to comply with the same, complaining that the wasteway in plaintiffs’ dam has not been suitably widened and constructed, and that the water has been kept higher than fifteen inches above the top of the permanent part of [109]*109plaintiffs’ dam by means of flash boards, and by locating thick plank on the rolling part, or top, of said dam, and that it has not otherwise been properly regulated by the removal of the flash boards, and the plank in the said wasteway, in seasons of high water: Therefore, it is considered by the court, that the defendant may have the opportunity'to prosecute his suit at law to ascertain and protect his just and legal rights acquired under the power of- his said contract of 1852, and the deed made and executed in pursuance of the same.
Therefore, our decree is in form and substance, as follows, viz :
Bllknap, SS. — SUPREME JUDICIAL COURT,
December Term, 1863.
Second Judicial District. }
The Winnipisseogee Lake Cotton and Woolen Manufacturing Company v. John L. Perley.
This cause having been heretofore heard and argued by counsel, at this term, which is continued by adjournment to the 17th day of March A. D. 1864, upon consideration thereof, it is ordered and decreed, as follows, to wit:
The deed aforesaid of the said John L. Perley to the said Winnipisseogee Lake Cotton and Woolen Manufacturing Company, dated September 26th, 1853, should be, and the same is hereby reformed, so that the said deed shall grant and convey to the said company and their successors, and assigns, forever, the right to flow any íands which the said Perley owned on the said 26th day of September, 1853, and which may or might be flowed or affected by said company maintaining their dam at Union Bridge fifteen inches higher than the permanent part of said dam, as it existed on the 30th day of August, 1852 ; provided, that said company shall not keep the water higher than said point, fifteen inches higher than said dam, whenever they can keep it down to the same, by removing the flash boards from their dam, and by opening their wasteway, which shall be enlarged to the width of sixty feet.
The deed aforesaid, thus reformed, shall take and have effect for all purposes, as if it had been originally made as now reformed.
The signers of this said deed, and all claiming under them, are hereby perpetually enjoined not to set up or prosecute any claim against the plaintiffs, their successors, or assigns, inconsistent with the rights established by this decree.
The temporary injunction issued in this cause against the defendant’s prosecuting his suit at law is hereby dissolved.
SAMUEL D. BELL,
Chief Justice.