
    Cheshire,
    March 4, 1919.
    Daniel R. Cole & a. v. Fred B. Pierce Company.
    In the absence of any deed or contract no duty rests upon the owner of a mill-dam to maintain it in repair though by his deed he has granted to a riparian owner the right to draw water ponded by such dam.
    Bill in Equity, to compel the defendant to repair a dam to hold back water for the plaintiffs’ mill. The plaintiffs and the defendant own mills on the same stream. The dam turns the water from the. stream into a canal which carries it to the defendant’s mill and from there to the plaintiffs’ mill. Both mills were owned by the same persons in 1891, who then, conveyed the lower mill to the plaintiffs, and by a later conveyance the upper mill passed to the defendant.
    Transferred by Marble, J., from the April term, 1918, of the superior court on an agreement that the bill is to be dismissed if the defendant is not bound to repair the dam.
    
      Charles H. Mersey and Philip H. Faulkner (Mr. Mersey orally), for the plaintiffs.
    
      Benton & Pickard and Streeter, Demond, Woodworth & Sulloway (Mr. Demond orally), for the defendant.
   Young, J.

It is true, as the plaintiffs contend, that their deed gives them the right to .draw water from the stream by means of the dam, but it does not follow that the defendant is bound to keep the dam in repair for their benefit, for the deed is silent as to who shall maintain the dam, and there is no rule of law written or unwritten which imposes the duty oh the defendant of repairing the dam for the benefit of the plaintiffs. In other words, notwithstanding the plaintiffs’ deed gives them the right to use the dam to draw water from the stream for the use of their mill, neither the deed nor the law imposes the duty of keeping the dam in repair on either of the parties for the benefit of the other. Horne v. Hutchins, 71 N. H. 117, 121, 124; Bartlett v. Peaslee, 20 N. H. 547, 549; 9 R. C. L. 794, 795.

Bill dismissed.

Plummer, J., was absent: the others concurred.  