
    Isaac M. Bull v. The Valley Falls Company.
    A court of equity will not enjoin the owners of a mill, helow on a stream, from so raising their clam as to flow hack the water upon a watered meadow, belonging to the owners of a mill above, and a drain rightfully used by them for the purpose of relieving their meadow from water takenfrom their mill trench, during irrigation; the meadow and drain being no part of the mill privilege of the latter, and their remedy for such injury being, exclusively, under Ch. 88 of the Bevised Statutes, commonly called the “ mill act.”
    This was a bill in equity, filed by tbe plaintiff as tbe owner of tbe Hamlet estate and mills, on tbe Blackstone river, to enjoin tbe defendants, as owners of tbe Manville estate and mills below, on tbe same river, from flowing out an intermediate dam, called tbe “ Mott Dam,” tbrougb wbicb, and under tbe pond raised by wbicb, tbe plaintiff bad drained a watered meadow of about twenty-five acres, wbicb lay along tbe river at tbe lower portion of bis mill estate. In 1826, tbe Hamlet dam and tbe Mott dam were botb erected by tbe Blackstone Canal Company, for canal purposes, upon the land of Stephen H. Smith, and at eacb dam a mill privilege was thereby created. By agreements between tbe Canal Company and Smith, tbe use of these dams by tbe former, for canal uses, and by tbe latter, for mill uses, was regulated ; under wbicb, Smith stipulated to keep tbe same in repair' whenever be used tbe water. At tbe Hamlet dam, a large cotton mill was built, — tlie same now owned and used by tbe plaintiff; at tbe Mott dam no mill was ever built, but tbe same was used to raise water for the uses of tbe canal only, until, in 1849, tbe canal was abandoned. On tbe Hamlet estate, west of tbe pond formed by tbe Mott dam, is a watered meadow, of about twenty-five acres, wbicb is rendered valuable by being irrigated by water drawn out of tbe Blackstone river above, tbrougb tbe trench of tbe Hamlet mill, and wbicb, being led over -tbe meadow by various drains, is discharged tbrougb a culvert leading from tbe meadow under and tbrougb tbe Mott dam, into tbe river below. On the 14th day of May, 1836, Smith being tben the owner of tbe Hamlet estate and of tbe Mott dam, conveyed the latter to the firm of Jenkins & Man, then the owners of the Manville mill estate next below on the Blackstone river, by deed of quitclaim, which contained the following clause:—
    “ Also, the grantor reserves to himself, his heirs and assigns, forever, the right of keeping, having and maintaining and rebuilding the drain, as now built, from his watered meadow, on the west side of the pond by said Mott dam, through said pond and dam, for the purpose of draining the water off said meadow; and no more water is to be drawn through said drain than is actually used for irrigating said meadow.”
    The plaintiff, by mesne conveyances, has succeeded Stephen H. Smith in his title to the Hamlet estate, embracing the watered meadow and the right to drain the same through and under the Mott dam and the pond raised thereby; and the defendants have succeeded Messrs. Jenkins & Man, as owners of the Manville estate below, and of the Mott dam, intermediate on the river between said estate and the Hamlet estate.
    In 1826, the Mott dam was constructed eight -j2^ feet higher than the Manville dam ; the Hamlet dam, nine feet higher than the Mott dam; the three absorbing the whole fall of this portion of the river. The bottom of the culvert or meadow drain through the Mott dam, was about five feet above the Manville dam. In 1838, Messrs. Jenkins & Man, electing to use so much of the Mott privilege at Manville, raised their Manville dam about two feet; and again, in 1852, about one foot. In 1861 and 1862, after the estate had been purchased by the defendants, they again raised the dam so as to flow out the plaintiff’s culvert or meadow drain through the Mott dam, and upon his watered meadow, claiming the right so to do under the mill act, subject to the remedy for the plaintiff thereby provided. It was to enjoin against this flowage, that this bill was filed; the bill, indeed, alleging that the flowage extended to the wheels of the plaintiff’s grist mill; but no point being made at the argument, upon that ground, except as coupled with the ground of abandomnent of the Mott dam, and the attention of the court not being directed to any evidence in support of it.
    Clarke, with whom was Bradley, for the complainant: —
    I. The Mott dam was kept up by the Canal Company until 1848, for their sole use; and the non-user of it by the defendants and their antecessors in the title, for mill purposes, from 1836 to 1861, a period of twenty-five years, was an abandonment of it for all mill purposes, except so far as its rights of flowage had been used at the Manville dam. This abandonment, followed by the putting in of a grist-mill wheel in 1855, and a brass wheel in the Hamlet mill, in 1858, prevents any further flow by the owners at Manville than up to the bottom of the culvert; their stopping in their flow at which point, until 1861, shows, that for twenty-five years they believed, that under their deed as they construed it themselves, they had no. further right to flow.
    II. The reservation in the deed of Smith to Jenkins & Man, operated as a condition of the grant of the Mott dam, and limits and restricts it. It was clearly the intent of the parties, that the rights appertaining to the Mott dam were to' be used only at its location; and this intent must govern. Tillinghast v. Fry, 1 E. I. Eep. 53; Bridge v. Wellington, 1 Mass. 219; Wallis v. Wallis, 4 lb. 135 ; Perry v. Peirce, 7 lb. 381; Qrey, Administrator, v. Clark, 11 Vt. 584. A party taking a deed poll, containing a reservation or condition, and going into possession under it, is bound by the condition, to the same extent as if he had executed a covenant to that effect. Taylor v. Weld, 5 Mass. 109; Carey v. Rawson, 8 lb. 159; Scott v. McFarland, 13 lb. 310; Newell v. Hill, 2 Mete. 181; Mendell v. Delano, 7 lb. 176 ; Bonca v. Connor, 6 Cush. 136; Rood v. Johnson, 26 Vt. 71; Gibson v. Tyson, 5 Watts, 41.
    III. Where a deed may enure in several ways, the grántee has a right to elect which way to take it; but is bound by his election. Jackson v. Hudson, 3 Johns. 376. If a deed be ambiguous, and one construction of it will enable one of the parties to overreach the other, the practical construction of it by both parties, for years, will govern. Irwin v. United States, 16 How. 513.
    
      T. A. Jenelces, for the defendants: —
    I. A court of equity will not give relief by injunction in a case like this, where the water way alleged to be injured is an artificial one, and a complete and adequate remedy exists at law for any injury done to it. Here is no obstruction of a natural watercourse; no diversion of a stream from the complainant’s mills; no back fiowage on his mills; no falling down of the banks of a river, whereby the adjacent lands of the complainant are exposed to inundation or his mills to destruction, the only classes of nuisance cases relative to water rights, in which equity interferes by injunction. Angelí on Watercourses, § 446; 2 Story’s Eq. Jurisp. § 927.
    II. The bill is framed as a nuisance bill, the allegations set forth a nuisance, and the prayer asks relief from a nuisance, and for no other cause, and under no other head, of equity jurisdiction. The argument abandons the whole ground of nuisance, and claims that the complainant is entitled to some relief, because there is an implied contract or covenant in the deed, by which Jenkins & Man, the defendants’ grantors, acquired the title to the Mott dam estate. This claim is set forth in the bill, but no portion of the .prayer for relief is based upon it; if it had been, the bill would have been bad for multifariousness. As the case now stands, the allegations of nuisance having been abandoned, and the bill being nothing more than a nuisance bill, it should be dismissed for want of equity.
    TTT. If this is to be considered as a bill to enforce a contract, it has no equity whatever. Grant that the reservation in the deed from Smith to Jenkins & Man, and also with the land, is so as to bind the Mott dam in the hands of the defendants, it is not the use of the Mott dam that is complained of, but the raising of the dam on the Manville estate, — another estate, and derived under an entirely different title.
    IY. The defendants, as owners of the Manville estate, have a right, under the mill act, to flow out the complainant’s watered meadow, and his drain appurtenant to it, by paying damages; tbe drain being no part of tbe Hamlet mill privilege, but an incumbrance upon it.
    Y. There has never been any abandonment of tbe Mott dam by Jenkins & Man, or by tbe defendants, as tbe proof fully shows.
   Ames, G. J.

Tbe plaintiff, as tbe successor to tbe rights of Stephen H. Smith, "has, under tbe reservation in Smith’s deed to Jenkins & Man, of tbe Mott dam and tbe land about it, an easement to conduct tbe water by a drain from bis watered meadow through said land and dam, to tbe river below; and were it not for tbe mill act,” as it is called (Ob. 88, of tbe Be-vised Statutes), we should not hesitate, upon tbe proof in this case in support of tbe allegations of tbe bill, to enjoin tbe defendants from tbe destructive waste of backing water upon tbe meadow, and into tbe drain which relieves it when irrigated, as quite within tbe jurisdiction of a court of equity, and as the appropriate relief to be afforded by it. Tbe utmost effect, however, that we can give to tbe above reservation is, that it constitutes tbe plaintiff owner of such an easement, for tbe benefit of bis watered meadow. Neither tbe meadow nor tbe easement are a part of bis mill privilege, nor protected against tbe right of tbe defendants as owners of tbe Manville privilege below, to flow both tbe meadow and tbe drain, under tbe provisions of tbe mill act, subject exclusively to tbe remedy provided by it. To this remedy we must remit tbe plaintiff; and as those portions of tbe bill which relate to tbe abandonment by tbe defendants of tbe Mott dam, and tbe acquisition by tbe plaintiff of rights by user to place bis mill wheels lower, as against it, are not supported by tbe proof, we must dismiss this bill, with costs.  