
    Truman Estes vs. Rodman H. Wells & others.
    A. conveyed by deed to B., “a privilege to make a ditch from the north side «. i the north branch of the Hoosac River, and taking the water from the river for a factory below, to be taken out a buttonwood tree six and one half rods easterly of said A.’s west line and the east line of land owned by said B., then north 57£° west, to the west line of said A.’s lot, the ditch to be fourteen feet wide ; with a privilege of building a dam across the river to take the water into said ditch, the dam not to be raised so high as to raise the dead water below the mouth of said A.’s ditch and above said B.’s dam at low-water mark: ” held, that the grantee acquired no right thereby to flow the land of the grantor without payment of damages.
    This was a complaint for flowage, brought in the court of common pleas. The parties admit that the complainant is the owner of the land described in the complaint, and that the respondents flow the same, as alleged therein. The respondents claim the right to flow the same without compensation, by virtue of a deed from David Estes to Edward Richmond, dated June 4,1836, which conveyed “ a privilege to make a ditch from the north side of the north branch of the Hoosac River, and taking the water from the river for a factory below, to be taken out [at] a buttonwood tree six and one half rods easterly of said David’s west line and the east line of land owned by said Richmond, then north 57|° west, to the west line of said Estes’s lot; the ditch to be fourteen feet wide, with a privilege of building a dam across the river to take the water into said ditch, the dam not to be raised so high as to raise the dead water below the mouth of the said Estes’s ditch and above said Richmond’s dam, at low-water mark; with a privilege to repair and rebuild said ditch and dam, and a passage way to the road by said Estes’s mill.”
    The respondents have become the owners of all the rights acquired by Richmond under the above deed. The complainant derived his title to the land described in the complaint from the same David Estes, by a deed dated August 18,1842.
    The respondents contended that the deed of David Estes to Richmond gave them the right to flow the land described in the complaint, provided they did not raise the water on such land higher than the level of the dam which they had a right to maintain under the deed. The complainant contended that the deed of David Estes to Richmond gave the respondents no right at all to flow the land described in the complaint, without compensation; and the complainant further contended, which the respondents denied, that the respondents had flowed the land to a level higher than the dam which they had a right to maintain under the deed from David Estes to Richmond.
    The presiding judge, Mellen, J., being of the opinion that the respondents did not, by virtue of the deed of David Estes to Richmond, acquire the right to flow the land described in the complaint without compensation, gave judgment for the complainant, and the respondents excepted to the ruling.
    
      L. C. Thayer, for the respondents.
    The deed of David Estes to Richmond gives to the respondents the right to flow the land described in the complaint, without compensation. Angelí on Watercourses, (4th ed.) § 353, et seq.; Pettee v. Hawes, 13 Pick. 323; Chamberlain v, Crane, 1 N. H. 64; Jackson v. Vermilyea, 6 Cowen, 677; Broom’s Legal Maxims, 200, and note y.
    
    
      j01 L. Dawes, for the complainant.
    1. The deed of David Estes to Richmond gives the respon dents no right to flow the land described, without compensation. Broom’s Legal Maxims, 201, 278, and cases cited in note A; Miller v. Bristol, 12 Pick. 550, 553.
    2. The respondents have no right to flow the lands described in the complaint, with the waters of the “ North Branch,” either with or without compensation. Rev. Sts. c. 116 ; Fiske v. Framingham Mamafactwring Co. 12 Pick. 68.
   By the Court.

This is a complaint for flowing lands of the complainant, by the respondents’ dam, under the mill acts, and the single question is, whether the respondents have acquired a right to flow as .they do, without payment of damages. The case comes before this court by exceptions, and presents a question upon the construction of a deed from David Estes, the plaintiff’s predecessor, to Edward Richmond, under whom the respondents claim title.

The court are of opinion that this deed gives the respondents no right to flow Estes’s land, without claim for damages. Perháps it might be held that it gives no right to flow Estes’s land at all, and that, by means of an artificial canal, he has no right to do so, without a grant; but this neither party claims. The only question here is, whether it gives a right to flow without damage.

It is true that a grant is to be construed favorably for the grantee, and it shall carry with it, as far as the grantor has, the power to grant, the rights necessarily incident to its enjoyment. "We say necessarily incident; but such construction is not to carry it beyond the terms of the grant. This is a grant to conduct the waters in a ditch from the river to the factory. It would be to make a new grant, to construe this as a right to make a reservoir beyond the fourteen feet ditch, on the grantor’s land. .

Exceptions overruled, judgment of the cowrt of common pleas affirmed, amd case remitted to the cowrt of common pleas for further proceedings.  