
    Ebenezer Francis versus The Boston and Roxbury Mill Corporation.
    If two tenants in common grant license to a stranger to erect a dam on their land held in common, each of them is estopped to claim damages for an injury occasioned thereby to land held by him in severalty.
    A corporation having partly made a dam over marsh land and flats held in common by A, B and C, for the purpose of creating a water power by means of a full and an empty basin, A, B and C, by deed, jointly and severally release the corporation from all claims on account of making the dam, or flowing any part of the flats which may be flowed by the waters of the full basin, or obstructing the flowing of the flats in the empty basin; and they jointly give the corporation permission to complete the dam and maintain it for ever. It was held, that this deed was a bar to any claim by A alone for any injury occasioned by the dam to marsh land owned by him in severalty.
    This was a complaint under the St. 1814, c. 39, establishing the Boston and Roxbury Mill Corporation.
    The complainant alleges, that on the 1st of January, 182C, the respondents erected and completed a dam from Charles Street in Boston to the upland at Sewall’s point in Brookline, so as effectually to exclude the tide water, and to form an empty basin of part of the space between the dam and Boston Neck; and that they erected and completed another dam from the first mentioned dam to Gravelly Point, and continued it to the upland, by a road and dike, in such manner as to inclose the tide water within the space between the upland and the road, dike and cross dam ; that the complainant is seised in fee of land (described in the complaint) in the empty basin, which before the construction of the dam first mentioned was valuable marsh land, but that since the dam has been completed, the corporation have obstructed the flowing of the land in such manner that the crops have for several years, and more especially during the last year, become greatly deteriorated; and that he is seised in fee of land (described in the complaint) m the full basin, which since the erection of the cross dam, road and dike, has been constantly overflowed by the tide water and the crops have been thereby injured, and this more especially during the last year.
    The respondents, in their second plea, allege, as to the first parcel of land, that before the malting and delivering of a deed h .reafter mentioned, they had wholly or in part made the dam, cross dam, road and dike, and that the same were intended to be completed and maintained for ever, for the purpose of creating a perpetual water-power for mills, by admitting and retaining the tide water in a space south-west and south of the dam &c. for a full basin or head of water, and by excluding from the space on the other side the tide water, to make an empty or receiving basin ; and that on the 1st of March, 1820, the complainant and Israel Thorndike and David Sears were seised as tenants in common in fee simple of the first parcel of land, and by their deed of that date, for a valuable consideration, gave to the corporation full leave, license and authority to make, use and maintain the dam &c. for the purpose mentioned, free from all claim, suit, &c., for any damages which might happen therefrom to the land in question.
    The third plea was similar, except that the deed was pleaded as a release from all claim, suit, &c.
    There were other pleas similar to the second and third, except that they related to other parcels of land.
    The plaintiff, after oyer of the deed, demurred to these several pleas.
    The deed referred to, which was an indenture of two parts, after reciting that Thorndike, Francis and Sears have conveyed to the corporation certain flats and marsh land for the purpose of erecting mills, &c., over which marsh land, and other marsh land and part of the adjoining flats of Thorndike, Francis and Sears, the corporation have partly made a cross dam, road, canal, dike, &c., for the purpose of making a dam between the waters of the full, and those of the empty basin, proceeds as follows : —16 Now therefore, in consideration &c., we the said Israel, Ebenezer and David for ourselves &c. do &c. release, discharge and for ever acquit the said corporation from all claims, demands, damages, &c., in any way arising from, by or on account of cutting said canals and ditch, or making said cross dam, road and dike, or flowing any part of the flats which are or may be flowed by the waters of the full basin, or obstructing the flowing of the flats in what ie called the empty basin, which we or either of us &c. lawfully have, or might have had, against sa^ corporation, &c., and we the said Israel, Ebenezer and David, do hereby give to said corporation, full and entire per- , , l ■ , , w mission, authority and power to make, hmsh and complete said cross dam, road, dike and canals, and to keep up and maintain said dam, road and dike, and to keep open and maintain said canals for ever.”
    
      March 22d, in Suffolk.
    
    
      April 2d, 1827, in Suffolk.
    
      W. Prescott and Nichols,
    for the complainant, to the point that the release from damages occasioned by flowing applied only to the flats, and not to the marsh land, the general words being restrained by the things particularized, cited 2 Bl. Comm. 298; 2 Com. Contr. 533, rule 8th; Lyman v. Clark, 9 Mass. R. 235; Storer v. Freeman, 6 Mass. R. 439.
    
      Gorham and Harrington, for the respondents,
    cited in regard to the license, Cook v. Stearns, 11 Mass. R. 537; Whitney v. Holmes, 15 Mass. R. 152; Pomfret v. Ricroft, 1 Saund. 323; Vin. Abr. License; Darcy v. Askwith, Hob 234.
   Parker C. J.

delivered the opinion of the Court. The ... . . . principal question arising out of the pleadings m this case is, whether the deed set forth on oyer is a bar to the complaint for damages for flowing one part, and for keeping the water from another part, of the land described in the complaint.

The deed of Thorndike, Francis and Sears, after reciting the various acts and doings of the corporation and setting forth a consideration, releases and discharges the corporation from all claims, demands, actions, suits, &c., arising from cutting the canals and ditch, or making the road, dike and cross dam, which are tne causes of the damages complained of in this suit; and this they do jointly and severally, in words as full and effectual as it is possible to make use of to attain the purpose, so that neither the releasors jointly, nor either of them separately, could have any pretence for complaint or action for any injury done, or damages sustained, by the acts now complained of, up to the time of delivery of the release ; and we think it manifest, that it was the intention to release and discharge also any future damages which might accrue, for the tenor of the whole instrument will justify the opinion, that the parties contemplated a permanent and enure adjustment of the claims and controversies which might arise out of the subject matter of the transaction. But technically, a release cannot operate to extinguish or defeat any future rights or claims, and therefore it is necessarj- to examine the succeeding clause in the instrument, in order to ascertain its operation.

The words of that clause are quite as full, and more ex tensive in their operation, than those which had preceded. “We the said Israel, Ebenezer and Bavid do hereby give to said corporation full and entire permission, authority and power to make, finish and complete said cross dam, road, dike and canals, and to keep up and maintain said dam, road and dike, and to keep open and maintain said canals for ever.” This, though technically a license, is in substance and effect a grant, and is'irrevocable in its nature, and carries after it necessarily a relinquishment of any claim of damages for the act which is thus permitted. An executed license cannot be revoked, nor can the party granting it recover any damages for the consequences of it, for volentibus non fit injuria. Cook v. Stearns, 11 Mass. R. 533; Webbe v. Paternoster, 2 Rol. R. 152; Rex v. Earl of Nottingham, Lane, 46; Vin. Abr. License.

It is said however, that this deed operates only upon such land as the grantors held in common, and that as part of the land described in the complaint was then, and is now, held by the complainant in severalty, he shall not be barred from maintaining this process for the damages done to that portion of the premises described. The deed does not describe the grantors as tenants in common, nor is it anywhere therein stated, that the land on which it is to operate is held in common. In the clause which purports to be a release, they expressly speak severally as well as jointly, and although the same language is not held in the license, they undoubtedly meant the same thing ; but without such expression, we think it cleai that it must operate upon their several, as well as their joint interests. The license has not a reference to any particular tract of land, but authorizes the erection of a dam &c., and the keeping it up and maintaining it for ever. This necessarily precludes each party to the deed from claiming any damages consequent upon the act which they have permitted, and it must be taken as their several, as well as their joint license. No authorities have been cited to this point, but the reason seems to be strong ; for it would be absurd that a man, who had joined with others in allowing an act to be done, which might injure his own land as well as that which he had in common, should be allowed to say, “It is true I permitted you to do the act, but I did not intend you should do injury by the act to my land, but only to that which I owned with others.” Suppose the case of three men owning \ mill privilege in common, and one of them owning another privilege below on the same stream, and the three join in a license or grant to stop the water above the first privilege, or to divert it so as to destroy both the privileges,. — can the one of the three who had joined in the deed, complain because the privilege which he held in severalty is destroyed ? Certainly not. The grant in such cases must be taken distributively, so that each grantor should be estopped from claiming any damages occasioned by the act which he had permitted. And by the common law there are instances, where a deed by two or more tenants in common shall be taken to be the several deed of each. As in Co. Lit. 197 a, where it is said, “ that if two tenants in common be, and they grant a rent of 20 shillings per annum out of their land, the grantee shall have two rents of 20 shillings, for that every man’s grant shall be taken most strongly against himself, and therefore they be several grants in law.”

It was suggested in the argument, that the release was intended, and by the terms of it should be construed, to operate only upon flats, properly so called, and not extended to marsh land, or such islets in the flats as might not be covered by water in ordinary tides ; but there is nothing in the deed which requires this restriction, and as it respects the license, the erection of the dam and roads is authorized without regard to consequences. We cannot doubt, however, that the intent of the parties was to give an unlimited operation to the release and license. The deed seems to be drawn with technical skill, and we may presume that the three grantors, with their counsel, were quite competent to defend their rights against any stratagem that might have been attempted to be practised «pan them bv the corporation. 
      
       See Porter v. Philips, Cro. Jac. 623.
     
      
       See Putney v. Day, 6 N. Hamp. R. 431; Winter v. Brockwell, 8 East, 308; Liggins v. Inge, 5 Moore & P. 712; St C. 7 Bingh. 682; Taylor v. Waters, 7 Taunt. 374; Barnes v. Barnes, 6 Vermont R. 388; Prince v. Case, 10 Connect. R. 375; 3 Kent’s Comm. (3d ed ) 452; Berick v. Kern, 14 Serg. & Rawle, 267; Bridges v. Blanchard,, 3 Nev. & Man. 691; Hepburn v. M‘Dowell, 17 Serg. & Rawle, 383; Bird, v. Higginson, 4 Nev. & Man. 505; Cocker v. Cowper, 1 Crompt., Mees. & Roscoe, 418.
     