ent case. They will be found recognized in many cases; but are in none more fully and accurately weighed and discussed than in Bealey v. Shaw, 6 East, 208; Williams v. Morland, 2 Barn. & Cresw., 910, and Wright v. Howard, 1 Simon & Stuart, 190, in England; and in Ingraham v. Hutchinson, 2 Conn., 584; Merritt v. Parker, 1 Coxe, 460; Palmer v. Mulligan, 3 Caine, 307; Platt v. Johnson, 15 Johns., 464, and Merritt v. Brinkerhoof, 17 Johns., 120, in America.

With these principles in view, the general rights of the plaintiffs cannot admit of much controversy. They are riparian proprietors, and as such are entitled to the natural flow of the river without diminution to their injury. As owners of the lower dam and the mills connected therewith they have no rights beyond those of any other persons who might have appropriated that portion of the stream to the use of their mills. That is, their rights are to be measured by the extent of their actual appropriation and use of the water for a period which the law deems a conclusive presumption in favor of rights of this nature. In their character as mill owners they have no title to the flow of the stream beyond the water actually and legally appropriated to the mills; but in their character as riparian proprietors they have annexed to their lands the general flow of the river so far as it has not been already acquired by some prior and legally operative appropriation.

No doubt then can exist as to the right of the plaintiffs to the surplus of the natural flow of the stream not yet appropriated. Their rights as riparian proprietors are general, and it is incumbent on the parties who seek to narrow these rights to establish by competent proofs their own title to divert and use the stream.

$103. There may be a right to water of a very limited nature.

And this leads me to the consideration of the nature and extent of the rights of the trench owners. There is no doubt that, in point of law or fact, there may be a right to water of a very limited nature and subservient to the more general right of the riparian proprietors. It may arise from grant and be affected by any considerations, conditions and modifications which the assent of the parties may impose; and where no such grant is established by written instruments it may be inferred, like other grants, from long usage and be gov erned by the limitations of that usage. The case of Bateson v. Green, 5 T. R., 411, is certainly good law, but it introduces no new principle. The doctrine of subservient rights and uses is probably as old as the common law itself. But in questions of usage the fact how much water has been actually used is not always decisive of the nature and extent of the right. Nor are occasional interruptions of the use, under peculiar circumstances, conclusive of a superior right to control and limit the entire use, to suspend it at pleasure or destroy it at discretion. The nature and object and value of the use are very material ingredients to explain and qualify the effect of such interruptions. It is not, for instance, to be presumed that valuable mills will be erected to be fed by an artificial canal from a river, and the stream be indispensable for the support of such mills, and yet that the right to the stream is so completely lodged in another that it may be cut off, or diminished, or suspended at pleasure; but if there should not be water enough for the progressive wants of all, the riparian proprietor should reserve to himself the power of future appropriation for his own exclusive use. In such cases reasonable presumption must be made from acts in their own nature somewhat equivocal and susceptible of different interpretations. The interruptions may arise from

resistance to an attempt, by the canal owner, to extend the reach of his dam farther into the river for the purpose of appropriating more water, or from a desire to prevent undue waste, in dry seasons, to the injury of the riparian proprietor. But the presumption of an absolute and controlling power over the whole flow, a continuing power of exclusive appropriation from time to time, in the riparian proprietor, as his wants or will may influence his choice, would require the most irresistible facts to support it. Men who build mills and invest valuable capital in them cannot be presumed, without the most conclusive evidence, to give their deliberate assent to the acceptance of such ruinous conditions. The general presumption appears to me to be that which is laid down by Mr. Justice Abbott in Saunders v. Newman, 1 Barn. & Ald., 258: "When a mill has been erected upon a stream for a long period of time it gives to the owner a right that the water shall continue to flow to and from the mill in the manner in which it has been accustomed to flow during all that time. The owner is not bound to use the water in the same precise manner, or to apply it to the same mill; if he were, that would stop all improvements in machinery. If, indeed, the alterations made from time to time prejudice the right of the lower mill [i. e., by requiring more water], the case would be different."

In this view of the matter, the proprietors of Sergeant's Trench are entitled to the use of so much of the water as has been accustomed to flow through that trench to and from their mills (whether actually used or necessary for the same mills or not), during the twenty years last before the institution of this suit, subject only to such qualifications and limitations, as have been acknowledged or rightfully exercised by the plaintiffs as riparian proprietors, or as owners of the lower mill dam, during that period. But here their right stops; they have no right farther to appropriate any surplus water not already used by the riparian proprietors, upon the notion that such water is open to the first occupiers. The surplus is the inheritance of the riparian proprietors, and not open to occupancy.

The question, then, resolves itself into a matter of fact: What has been the quantity accustomed to flow in the trench, and what the qualifications and limitations accompanying the flow during this period?

It appears to me most manifest, from the general current of the evidence, that the trench proprietors do not hold a mere waste-water privilege in the sense which the plaintiffs attribute to those terms. It would be almost incredible that a priority of right should be reserved to the plaintiffs, as riparian proprietors, to use the water of the stream for any new mills to be erected from time to time by them, so as to entitle them, at their choice, to divert the whole from the trench. Nothing but the clearest proofs could establish such a right, going, in the event, to the complete destruction of the mills erected on the trench. So far from such a pre-eminent right, as it is called, being justified by the evidence, it appears to me to be encountered by it at almost every step. The acts of the parties, at the different periods of their ownership, are irreconcilable with such a supposition. The answers of the defendants positively deny it. The most that can be pretended from any portion of the evidence is that the proprietors of the mills on the lower dam did in dry seasons, when the water was scant, remove the temporary dams erected by the trench proprietors, to gain at those periods an additional supply of water. But these acts of interruption seem confined to the temporary dam so erected, and not designed as interruptions of the ordinary flow of the water by means of the

permanent dam, or otherwise, into the trench. And what is very material, • they were interruptions for the purpose of supplying their mills, then existing on the lower dam, with water. If, therefore, we give the fullest effect to this assertion of pre-eminent right, it must be limited, as it was exercised, to the uses of the mills then in existence, that is, to the usual priority of supply, which, in a conflict of right and a deficiency of water, they were accustomed to take and require. Such a pre-eminent right, founded merely in usage, for particular mills, must be confined to those mills, and cannot be admitted as proof of a general unlimited right over all the water for all future mills. If the trench owners could only claim a waste-water privilege, it was of wastewater not then appropriated or used by existing mills. In this view of the case, it would not help the plaintiffs; for it is not shown that the old mills would have sustained any injurious loss of water if no new mills had been built by the plaintiffs, requiring a further supply. But it cannot be disguised that even this claim of right, so limited, has many difficulties to encounter. There is no uniform, clear, decisive evidence to support it. The evidence is contradictory or inconclusive. There has been no acquiescence in the acts of interruption of such an unequivocal nature, and for such a period, as would justify the court to infer any admission of right by the trench owners, or any original reservation on the part of the plaintiffs. On the contrary, the matter of right seems always to have been in contestation. The most that the court can say is that the claim of pre-eminent right is suspended in doubt; and that it ought not, under such circumstances, to give relief against the positive denials of the owners.

$104. Trench owners are entitled to only the accustomed flow from the river, and have no right to increase the flow.

My opinion accordingly is that the trench owners have an absolute right to the quantity of water which has usually flowed therein without any adverse right on the plaintiffs to interrupt that flow in dry seasons, when there is a deficiency of water. But the trench owners have no right to increase that flow; and whatever may be the mills or uses to which they may apply it, they are limited to the accustomed quantity, and may not exceed it.

What that quantity is has not been ascertained by any precise admeasurement. The trench owners in their answer do not pretend that they have acquired any new rights by an additional uninterrupted use within the last twenty years. On the contrary, they assert that the quantity which now flows is in conformity to the ancient usage, and does not exceed it. They assert "that the present gate-hole which leads the water from the said great flume [of the upper dam] into said trench is about four feet wide and fifteen or sixteen inches deep; that the said gate-hole was made about one year after said upper dam was built, and that the diversions thereof have never been altered from the time the same was first made as aforesaid, to the present time." If the fact be so, it furnishes some elements for a very correct admeasurement of their rights. The principal difficulty in applying it as an absolute measure arises from the fact of there having been a gate in this gatehole put there at the time of the hole itself being made. This gate was removed at least ten years, and more probably from fifteen to twenty years, before the filing of the bill. The plaintiffs insist that this gate was designed to regulate the quantity of water to which the trench owners were entitled, and was adjusted accordingly. The latter admit the fact of its existence, but assert its removal twenty years ago, and that "it was placed in said gate-hole

by the owners of the shops and mills on said trench, and used by them to shut the water out of said trench while they were repairing the same or the works thereon.". It is very difficult to ascertain from the evidence whether any positive limitation of right can be deemed to have been originally intended by it. It was hoisted and lowered by the trench owners, as well as by others, occasionally, while it existed, and its removal for a number of years affords some presumption that it was not deemed a fixed regulator of right. Its height varied at different times according to circumstances; and it is not easy to infer that to be a positive gauge of quantity agreed on by the parties which was not immovable in its position.

There was an agreement entered into in the year 1796 between the owners of the upper dam of the trench, and of the mills on the west side of the river (which is set out in the bill, and admitted by the owners), which has been relied upon by both parties as explanatory of the rights of all concerned. The plaintiffs, and those under whom they claim, were not parties to it; but as matter of evidence they have themselves relied on it, and complain of it, not account of its incorrect statement of the matter of right, but of the intentional omission fairly to carry it into effect. It begins as follows: "Whereas the ancient privilege of Sergeant's Trench or the shops thereon has not been precisely ascertained, and whereas the owners thereof, the owners of the new upper dam, and the owners of the ancient mills at the falls, are all interested therein, and in order to make each party right, and make the same as conveniently managed as may be, we, the subscribers, covenant and agree as follows: The owners of the upper dam hereby convey to the owners of the shops below a full and free liberty of passing and repassing on their land to the gate when they think proper, for the regulating the water according to their right in the same. And the owners of the works below the falls have the same liberty to shut or hoist said gate for the same purpose in as full manner as ever heretofore, by custom, usage or contracts. And to prevent any difficulty about ascertaining the proportion of water fully due and belonging to said trench works, it is mutually agreed that Benjamin Cozzens, Jr., and Stephen Jenks, Jr., be and are hereby chosen to regulate and ascertain the same; and that the owners of the upper dam keep a suitable gate on their flume, suitable for conveying and regulating the said water at their own expense. And that it is further agreed that in case the said B. C. and S. J. do not agree they have power to appoint a third person, two of whom, agreeing, to settle the And that the ancient usage or quantity of water, which has been accustomed to pass the said trench, be the rule for them to aim at as near as they can, and the mode of settlement, and the quantity they agree upon, be hereafter the mode and quantity forever. And that the said persons, within one year from the date, ascertain the same; and that they inform the parties, who now agree to make such other writings as may then appear more descriptive of the mode and quantity, and the same be then recorded, and that the regulating gate be made at the expense of the privilege." Now, the gravamen of the bill is that this agreement was never carried into effect by any award whatsoever, though the plaintiffs have requested it; but that it was entered into to defraud the plaintiffs, by deluding them into the belief that the parties intended to secure the ancient privilege of the trench owners and no more; whereas, under pretense of it, the trench owners have within twenty years last past used much more water.

same.

We are then at liberty, as I think, to consider that the agreement of 1796 in

its terms and statements is adopted by the plaintiffs. In this view it has a most important bearing on the whole case, not only as a document of considerable antiquity, but as one intended to settle rights between parties, all having different interests. Unfortunately, no award was ever made by the arbitrators, they differing in opinion, the one being an owner on the trench and the other an owner on the lower dam, as to the height which the gate ought to be raised in a dry time. The difference seems to have been between one inch and three-quarters and two inches and a half in the height.

The agreement itself, however, deserves great consideration. In the first place, it states the right of the trench owners in a very strong manner. It admits, and indeed requires, the arbitrators to allow them "the quantity of water which has been accustomed to pass to the trench;" and of course it fixes the right by the quantity flowing in the trench, and not by the quantity which the mills then existing actually required. In the next place, it contains no qualification or limitation of this right, by the slightest allusion to any preeminent right or priority of the lower-dam mills, in case of a deficency of water or otherwise. Yet such an omission, if such a qualification or limitation as is now contended for by the plaintiffs existed, would be almost incredible. The presumption against its existence, connected with the subsequent lapse of time during which it has not been admitted or acquiesced in, is of itself abundantly cogent and pressing. In the next place, it goes strongly to repel any inference that the gate, erected in 1794 at the gate-hole of the swift flume, was understood by the parties as an absolute measure of the quantity, or had a fixed position to limit the right of the trench proprietors. If it was a fixed gauge there could have been no reason for an arbitration to ascertain it in 1796, much less would it have been recited in the agreement that it had "not been precisely ascertained." The most that can be properly said is that the parties placed it there for their convenience, but not as a positive limitation of right, which neither party was at liberty to alter, if it affected his acknowledged rights injuriously. In the next place, the agreement ascertains that the right of the trench owners was not, if I may so say, an expanding right, increasing with the uses to which they might choose to appropriate the water of the river; and that, therefore, they had no right to extend their prior appropriation of the water. Their use of the water since that period ought to be referred back to their rights as recognized in 1796, and if any additional quantity has been appropriated in the intervening time (which they deny) that excess is to be deemed, not a matter of adverse claim, but of mere indulgence. In the next place, it is a fair inference from the agreement that the water which thus flowed into the trench of right was ordinarily adequate to the use of all the mills then erected on it. At least, the existing state of things at that period may be taken to be rightful and adequate to the wants of the parties, or some exception would naturally have found its way into the agreement. And this inference is fortified by the deposition of Benjamin Cozzens, Jr., one of the arbitrators, as well as by the subsequent user by the trench owners. The agreement of 1797, between the owners of the upper dam and the owners of the mills on the west side of the lower dam, for regulating the flumes of the upper dam, so as to secure a proper quantity of water to the lower dam, does not in the slightest degree impugn these conclusions. The trench owners were not parties to it; but it has an implied reference to the agreement of 1796, and manifestly contemplated a ratification of its stipula

tions.