
    *Merritt and others against Brinkerhoff and Van Wagenen.
    WI'hmv several owners oí' mill-seats on a stream, have a common and equal right to the use of the water;, though no action lies against the owner of a imii above, for any damage which the owner of a mill below may incidentally sui-ter from the reasonable use of the water by the former, for his own benefit; yet the owner of the mill above has not an unlimited right to use the water as he pleases, or to stop the natural flow of the stream, so as to destroy or render useless the mills below And if he shuts down his gate, and detains the water for an unreasonable time, or lets it out in such unusual quantities as to prevent the owner of the mill below from using it, or deprives him of a reasonable and fair participation in the benefits of the stream, he will be answerable to the party injured to the extent of the loss he has thereby su&-
    THIS was an action on the case, tried at the Rensselaer circuit, before Mr. Justice Van Ness, in 1818.
    The declaration contained four counts: The first count stated, that the plaintiffs were possessed of certain mills and works used for the purpose of manufacturing flour, and had a right to the benefit and enjoyment of the water of a certain stream of water, in Troy, &c., which had run and flowed, &c. until the stopping of the same, &c., and which of right ought still to run and flow to the said mills, for supplying them with water, A.c. Yet the defendants, well knowing, &c., and intending to injure the plaintiffs, and to hinder them from working their said mills, Ac., and to injure them in their trade and business of manufacturing flour, &c., on the 1st of July, 1816, and on divers times between that time and the day of the exhibiting the bill of the plaintiffs, &c., wrongfully made and erected a dam of thirty feet height across the said stream above the said mills, and kept the said dam-so erected, and thereby hindered and prevented the water of the said stream from running along its usual course to the mills of the plaintiffs, and supplying the same with water, by reason whereof sufficient water to turn the mills of the plaintiffs during all that time, could not, and did not, run to the said taills; and the plaintiffs could not, for want of water, use their said mills, or either of them, or use or follow their said trade or business, in so large or beneficial a manner as they might otherwise have done. The second count wars like the first, except that it alleged the stopping of the water, &c. on the 1st of January, 1815, and since. The third count was, also, like the first, except that it charged that the defendants, on the 1st of July, 1816, raised a dam 28 feet beyond its usual height, above the mills of the plaintiffs, and above the canal, possessed by the plaintiffs, for conducting the water of the said stream to the said mills, and thereby stopped a much greater quantity of water of the said stream, than had been used to !%e stopped, or ought to have been stopped, and prevented its flowing to the said canal, and through that to the plaintiffs’ mills. The fourth count was similar to the third, except that it charged the raising the dam by the defendants, on the 1st of January, 1815, 28 feet beyond its usual height, &c.
    The plaintiffs gave in evidence a deed from David Defrcest to Thomas L. Whitbeck, his heirs and assigns, dated 15th of May, 1795, for the consideration of five shillings, and the .yearly rent and covenants therein contained, on the part of the grantee, for a certain piece of land situate in Troy, therein described, containing about two acres, including the mills of the plaintiffs: together with the privilege and liberty, at all times thereafter, of digging a raceway, at least twelve feet wide, through the land of the said I). Defreest, beginning between the third and fourth hemlock trees, standing below the bridge then erected over Mathias Kill, and running from thence through the land of the said Defreest, keeping a proper distance from the burying ground, until it intersected the described premises; and also the liberty and privilege of damming the water in the said Mathias Kill, and erecting a dam to raise the water three feet and six inches higher than the dam then was, together with the privilege of drawing the water out of the said kill, through the said canal or raceway so to be dug, and also the use and privilege of the water in the Binne-gat, together with the soil under the water: yielding and paying therefor, &c.
    
    The plaintiffs then deduced a title from the said Whitbeck, deceased, to themselves, in the above described premises.
    The defendants held the premises occupied by them under two leases from David Defreest, above mentioned, to John Brinkerhoff; one dated April 15, 1807, for the term of IG years ; and the other, dated May 1st, 1S09, for the term of 40 years, at the annual rent of 450 dollars, with a restriction, in the first lease, against building a grist mill; and in the last, against building a gunpowder mill on the premises. The leases comprised about six acres of land ; and the Wynant’s, or Mathias Kill, (on a part of which the defendants’ mill and dams are erected, which are the #ground of this suit,) and the premises are thereby demised, together with all and singular the trees, &c., waters, water courses, benefits, liberties, and privileges to the premises belonging or appertaining. A map, showing the situation of the stream and mills, and canal leading to the defendants’ mills, was produced. It appeared that the water was carried by a canal to two penstocks, and thence conducted to the overshot wheels of the plaintiffs’ mills ; there being a very great head of water, a small column was sufficient to turn the mills. The distance between the plaintiffs’ dam and that of the defendants, is about 30 rods. The object of the plaintiffs’ dam is more for the purpose of turning the water into the canal, than for forming a pond. The mills of the plaintiff are near the Hudson, and the dam is about a quarter of a mile from the river. The approach from the river to the mills is through the Binnegat, a small creek, on which there is a lock to deepen it for boats. The mills of the plaintiffs are extensive and valuable. The stream of the Wynant’s, or Mathias Kill, has its source in three lakes, and is very uniform in its course. Since the defendants erected their works, the plaintiffs have added to their establishment.
    A great many witnesses were examined on both sides, whose testimony, (and in which there appeared some contrariety,) was detailed in the case, but it is unnecessary to state it at large. Stexvart, a witness for the plaintiff, testified, that De-
      
      freest owned the stream, and the land on both sides, (except what he conveyed to Whitbeclc,) from the Hudson river to the dam and works of the defendants, and continued to own the site of their works, until he sold to them in 1807, That the witness superintended making the first dam, and making the canal now owned by the plaintiffs. The new dam was raised three feet and a half above the old dam ; that the new dam crossed the stream obliquely, and the north end was raised about a foot higher than the south, by agreement with Deftest, so as to throw the water into the canal, and the better to accommodate Defrecsfs saw mill. After the dam was raised, and the water stopped, Defreest found fault with it, as being raised higher than it ought to have been; and that it would make so much back #water as to injure the fulling mill which he owned above on the stream ; and Whitbeclc said that Dtfreest had a right to cut down the dam, if it was too high.
    The defendants had built their dam to the height of about 24 feet, and erected rolling and slitting mills, and a nail factory. Before these works were erected, the plaintiffs’ mills were supplied with a uniform and abundant flow of water. Afterwards, particularly from July to September, in 1815, the interruption to the water caused by the defendant’s dam was such, that the plaintiffs’ mills, having two, and afterwards three run of stones, during six or seven weeks, instead of grinding from fifty to seventy barrels of flour, made only about twenty barrels. The manner of this interruption was explained to be, that the defendants, during the time of heating a quantity of iron, which occupied more than an hour, entirely stopped the water in their dam, and when they, afterwards, let it out,, it ran in such torrents that it was wasted by running over the plaintiffs’ dam. By this irregular .flowing of the water, occasioned by the manner in which it was used by the defendants, the mills of the plaintiffs were stopped from a half an hour to two hours daily.
    
      Ashley, a witness, stated, that to remedy these evils he put a plank eight inches high on the plaintiffs’ dam; but as the defendants complained of the back water, he lowered it again. The plaintiffs’ mills were injured in a similar manner, in July and August, 1816. It was proved that there was a very severe drought during the summer and autumn of 1815, and of 1816. But it was testified, that there was water sufficient to turn the mills during that time, and that had not the defendants stopped the water in their darn, during the time of their taking heats at their mills, there would have been sufficient water to keep the plaintiffs’ mills constantly employed. There was, however, a considerable diversity, in the opinions of the witnesses, as to the sufficiency of the supply of water, in July, August, and September, 1815, and 1816 ; and it appeared that there were about twenty mills of different kinds on the same stream.
    
      The judge charged the jury, that the first question for them to consider was, whether the injury to the plaintiffs, ^during the years 1815 and 1816, arose in consequence of the defendants’ stopping, and manner of using the water in Wynanfs Kill, or by reason of the drought. That this was a question of fact which it was the province of the jury to decide; and if they should think that it was occasioned by the drought, the plaintiffs had no right of action. After commenting on the testimony, the judge proceeded to state to the jury, that as to the respective rights of the parties, as Defreest had conveyed to the plaintiffs, and as the defendants claimed under Defreest, they stood in the same place. That, generally, a person who owned a mill-seat at the mouth of a stream, had no more right than those above him; nor the person at the head of the stream than those below him. That where a living stream ran over the farms of different persons, it was a natural right to which all were entitled. That there was no doubt that the defendants had a right to erect a rolling or slitting-mill, and had as much right as the plaintiffs to the use of the water of the stream. But the question for the jury to determine was, whether the manner in which the defendants had used the water, in 1815 and 1816, was not inconsistent with the plaintiffs’ rights ? That it was correct to say, that the defendants could not use the water as they pleased. That, although they might use all the water of the stream, yet they could not law fully do it, in such an unreasonable, unusual, and extraordinary a manner, as to destroy the works of those below on the same stream. They were not at liberty to inundate or flood those below, nor to exhaust the water, by turning it into a sandy plain. That although a person situated above another on a stream had the same right with those below him, yet he must be restricted to a reasonable use of his right. That the reason why an action would lie for the diverting of water, was that it deprived the mills below of the use of it; and if the same effect be produced, by unreasonably, wantonly, and improperly stopping or using the water, there ougjst to be some remedy. That although the term diversion was often used technically, yet the substance of its import ought to be regarded, and the nature of the injury, and the reason of the rule relative to diversions of water, ought to be taken into view. That if the #jury were satisfied that the stream would have furnished enough water for the plaintiff's’ mills, then the proof was, that a few minutes after shutting the defendants’ gate the plaintiffs’ mills were stopped ; and when the gate was raised the water was wasted, and, when it came, it was received so irregularly, and in such torrents, that the plaintiffs could not do good work at their mills.
    Another question which he, therefore, submitted to the jury, was, whether,'upon all the evidence, the defendants had been guilty of such an unreasonable use of the water, as was improper, unjust, or injurious to the plaintiffs.
    The plaintiffs’ counsel having made a computation of the damages sustained by the plaintiffs, he was sworn as to the correctness of the results of his statement: and the judge told the jury, that they might take the paper, containing the statement, out with them ; but the defendants’ counsel objected to the paper being handed to the jury. The judge said that the counsel might do as he pleased as to handing it to the jury ; and charged the jury, that it was in evidence that the results of the calculations on the paper were correct; and that the paper could be used only to ascertain such results, but not in relation to any other fact proved at the trial.
    This statement showed the difference between 80 barrels and 30 barrels per day, in 1815, at 47 cents, for 35 days, amounting to 822 dollars and 50 cents : and in 1816, the amount of the same difference, for 42 days, amounting to 987 dollars, making, in the whole, 1,809 dollars and 50 cents.
    The jury found a verdict for the plaintiffs for 700 dollars damages.
    A motion was made to set aside the verdict, and for a new trial.
    
      BueL for the defendants.
    1. There is a succession of mill-seats on the Wynant's Kill above that of the plaintiffs; and it is evident that Defreest, in his deed to Whitbeck, under whom the plaintiffs claim, intended to give a limited and specific grant. It conveys two acres of land, with the privilege of digging a raceway T2 feet wide, with liberty to #build a dam three feet and a half higher than the old darn, and to draw water out of the kill, and the Binnegat. Defreest had a fulling-mill where the dam of the defendants is, and from the fact of his limiting the dam of Whitbeck to three feet and a half, it is evident lie meant to reserve his mill-seats. What was not specifically granted must be considered as reserved. The plaintiff's’ rights cannot be extended by construction. This is an established principle of law. Where a person owns a stream, in which another has a right of fishing, the owner may erect mills on the stream, though it should impair the fishery; for the right of fishing is accessary; and if it becomes less useful by this exercise of the right of the owner, it is an accident merely.
    
      “ Rights ceded by the proprietor are considered as ceded without prejudice to the other rights that belong to him, and only so far us they may agree with them; unless an express declaration, or the very nature of the right, determine it otherwise. If I have ceded to another the right of fishing in my river, it is manifest that I have ceded it without prejudice to mv other rights, and that I remain free to build on that river such works as I think proper, though they should even injure the fishery, provided they do not destroy it entirely/' (Paite/, liv. 1. ch. 22. s. 273.) Stewart’s testimony shows by the acts of the parties and the tenacity of D. about the height ot the dam, how this grant was understood at the time. Should it be said that there are covenants in D.’s deed, by which the defendants, as claiming under D,, are bound, it may be answered that the covenants cannot extend further than the premises, or rights granted. Besides, the party should resort to his action on the covenant. The doctrine of estoppel cannot apply here. This is an action on the case for a tort.
    Though the defendants can claim no more than was granted to them by Defreest, yet they may stand in a different relation to the plaintiffs or others, than to the grantors.
    2. Here was a prior occupancy by 1)., to whose rights the defendants have succeeded, by reason of the fulling-mill, which stood where the dam of the defendants now is. In cases of prescription, the change of mills, as from a fulling to a gristmill, continues the prescription. (4 Co. *84.) But it has been settled that a prior occupation of a mill-seat, unaccompanied by such a length of time as will afford the legal presumption of a grant, gives no exclusive right to the water. (Platt v. Johnson, 15 Johns. Rep. 213.) Neither of the parties can show an occupancy for such a period of time. They stand, therefore, equal, in this respect. Each party has a right to use his own natural advantages in a lawful manner.
    3. The question, then, is, whether the defendants have used their rights in a lawful and reasonable manner. The general rule is, that all persons have a right to the free use of a stream of water running through their lands. If a man use water on his own land out of a watercourse running through his land to the pond of B., whereby B.’s pond is not so full, no action lies, if he does not divert the watercourse ; (1 Comyn’s Dig. 306. Action on the case for a nuisance C.) and the rule is founded on the principle, “ That an action does not lie for the reasonable use of one’s right, though it be to the annoyance ot another. (1 Comyn’s Dig. 305.) Karnes, in speaking of the exercise of opposite rights, lays down the same principle : Though “ the exercising my right will not justify me in doing any action that directly harms another—and so far my interest yields to his”—yet, “ that in exercising my right I am not answerable for any indirect or consequential damage that another may suffer ; and so far the interest of others yields to mine.” (1 Principles of Equity, 46. B. 1. s. 1.) As a consequence of this just principle, every person may enjoy and use the peculiar and superior local advantages he may possess on a river or- stream, for his own benefit, though it may, in its consequences, be detrimental to another. This principle is fully adopted in the law of France. (Code Nap. Art. - 640, 641, 644.)  The same principle is laid down by *the Supreme Court of Massa h use Its, in the case of Westen v. Aldtn. (8 Mass. Rep. 146.) It was decided that the owner of land adjoining to an ancient, brook of running water, may lawfully use the water for the purposes of husbandry or irrigating his land : and if the owner of the close below is damaged thereby, no action lies: it is damnum absque injuria. An doubt an action will lie for diverting a watercourse. Blaekstone (3 Comm. 218.) says, “it is a nuisance to stop or divert water that uses to run to another's meadow or milland lie cites Fi/z/u:rbert, (A«t. Brer, 18-1.) who speaks only of n diversion of the water. The position is true only when confined to a wanton or malicious stoppage of tlse water ; or where the plaintiff has a prescriptive right to the water. So, when Blaekstone speaks of prior occupancy as giving "a property in the current,” he must mean such an occupancy for such a length of time as to produce a prescriptive right. All the cases in which actions have been maintained in the English courts, are either for diverting the stream, or causing the water to flow back; or where the plaintiff has u prescriptive right to the water. (Dyer 248. (6.) 3 Mod. 48. ] Jills. Í74. 6 East, 213. 10 Johns. Rep. 241.) Indeed, this subject has been fully discussed, and the principles settled in two cases which have arisen in this court. {Palmer v. Mulligan, 3 Caines, 307. and Platt v. Johnson, 15 Johns. Rep. 213.) There must be a diversion of the stream ; an unnecessary waste of the water; or a wanton and wilful detention of it, to afford a ground of action. “For justice,” says Lord Karnes. “ will not permit a man to exercise his right, when his intention is solely to hurt another.” Now, we contend, that there was no evidence in this case of any wanton detention of the water by the defendants; nor can any wrong motives be imputed to them. It was necessary for them, in order to use their iron works advantageously, to shut the gates while the iron was heating. Besides, there was sufficient evidence to show that the failure of water, in 1815 and 1816, was owing to the severe drought.
    
      *i. The judge’s charge, though correct as to the law as far as it went, was calculated to mislead the jury, by not explaining what the law meant by an “ unreasonable, improper, and unjust use of the water.”
    5. Improper evidence was admitted. The paper containing a statement of the damages sworn to by the plaintiffs’ counsel, ought not to have been allowed to go to the jury. (Gilb. Ev. 21, 22. 1 Trials per Pais, 257.)
    
      Mitchell and Van Vechten, contra.
    1. The jury, by their verdict, have found that the injury sustained by the plaintiffs was occasioned by the unreasonable and improper conduct of the defendants ; and it is not correct to contend, that it was owing to the drought. The court are to give their opinion on the facts found by the jury. That there was a contrariety of evidence is no ground for a new trial. (1 Wils. 22. 2 Sir. 1142. 3 Wils. 47. 3 Johns. Rep. 271.)
    It is said that no action lies, unless there has been a diversion of the stream, or a malicious and wanton detention of it. It is conceded, however, that for throwing back water on a mill above, an action will lie. If so, why should not the owner of a mill below be equally protected ? It is not essential that the injury should have been done maliciously. For where an act is done, which, consequentially or collaterally, injures another, an action on the case lies. For every wrong there must be a remedy. (2 Bl. Com. 122, 123. 217. I Karnes’s Pr. Equ. 41, 42.) The question is, whether the rights of the plaintiffs have been infringed. It is not denied, that the plaintiffs have all the rights which were in Whitbeck. It is a grant of the water in the Kill. But even where there is a presumption of grant arising from the long time a person has been in the use or occupation of' the water of a stream, the subsequent grantee must take subject to such grant. (Bealy v. Share, 6 East, 20S. 214, 215.) The defendants, claiming under !).. must take subject to the grant to the plaintiffs. The incorporeal right of the plaintiffs is to turn the water of the Kill, through a canal, to their mill; but the defendants have withheld the water, %nd thereby infringed the right of the plaintiffs. There is no ground for the suggestion that the water above was impliedly reserved for D.’s mill. The covenants in the deed from D. to W. run with the land, and though the defendants are not parties, yet they are bound by them, in respect to the land. (5 Co. 16. b. 2 Bac. Abr. Cov. E. 3.) It is true, the plaintiffs do not claim on the covenants, but they refer to them to show their rights; and the defendants are estopped to deny them. The plaintiffs might here rest their cause ; but as there are several mills above, on the same stream, it is important to have the rights of the owners determined.
    2. The owner of a mill on a stream of water is bound to let the natural flow of the stream pass on, at all times, to those below him. It is conceded, that the rights of all the owners of mill-seats on the same stream are, in this respect, equal; that is, each has an equal right to use the natural advantages of his situation. A living stream passing over the land of several persons, is a privilege or advantage derived from nature, and incident to the land. This natural privilege cannot be taken away or destroyed by one who happens to be above the others, or nearer to the source of the stream. Prior ocou-cannot vary the right, unless it has been exclusive and uninterrupted, for at least twenty years. These principles are well settled, (ii Ernst, 214, 215. 3 Cain ex, '401. 15 Johns. Jtip. 213. 2 Do mat. B. 1. tit. 8. s. *2. 323—'325.) The party must so e.onstruct his dam, and so use the water, as not to injure his neighbors below in the enjoyment of the water, ae-cording to its natural course. (ISaekridi r v. Beers, 10 Johns. Hep. 211.) The only qualification is the case of a prescrip-lion ; but no prescriptive right can be set up here. The nat-oral right is to raise the water bv a dam. so far as to set your mill in operation ; but when that is done, you must let the water flow over, and run down, so that others may use it. You cannot stop the water further, or longer, than is absolutely necessary fir the enjoyment of your natural rights. If any injury arise from such a lawful and reasonable use of your rights, no action lies. Here there *was no necessity tor de-taming the water ; for the defendants might leave used the water for their mills, and have let two thirds of it pass on to the plaintiffs. It is said, that the defendants might use the water for irrigation. True ; but they cannot exhaust it by such rt use. The plaintiffs, who are the prior occupants, have expended immense sums in the erection and improvements of their mills ; and if the doctrine of the defendants is to prevail, the injury to the plaintiffs must be ruinous. But it lias been insisted, that no action lies, unless for diverting the stream; but that doctrine is not to be found in Comyn; and Lord Karnes, niter much fanciful speculation, comes back to the good old rule, sic utere tuo, ut alienum non lanías. He enumerates six different purposes to which water may be applied, and which ought to have a preference to other objects ; and the last and lowest of these purposes, is the use of water for machinery. Now, the object of the plaintiffs being to grind corn, it is, according to this writer, to be preferred to that of the defendants. An action for the diversion of a stream is, substantially, an action for depriving the plaintiff’ of the use of the water to which he is entitled. The injury complained of, is the being deprived of the use of the water ; the manner in which this has been done can make no difference, if the rights of the plaintiff have been infringed. The rights of the parties being equal, the defendants must so use their rights as not to injure the plaintiffs. Where a defendant hada piece of water supplied by a stream, from which a mill of the plaintiff’s was supplied, and the defendant sometimes kept back the water, and at other times let. it out in such quantities that the mill was overflowed, the Court of Chancery granted an injunction to restrain the defendant from preventing its flowing in regular quantities. (1 Ch. Cas, 5T4. 1 Bro. C. C. 588. 1 Maid. Ch. 129. Saim-der; v. Newman, 1 Barn. & Aid. Rep. 258. Boole of Assise, 
      146. 16 Vin. Abr. 26. tit. Nuisance, pi. 7. 9. p. 27. pi. 21. p. 29. pi. 20.)
    3. The judge's charge was correct; he did not misdirect the jury.
    4. As to the objection, that the statement sworn to by *the plaintiffs’ counsel ought not to have been delivered to the jury. The jury may take with them any paper which has been read in evidence ; (Tidd’s Pr. 795. 3 Johns. Rep. 252.) and under the directions given by the judge, there was no danger of its having any improper influence
    
      Henry, in reply.
    The rules of law as to the use of running water, are not perfectly clear and well settled ; and if the court should have any reason to doubt whether justice has been done in this case, they will direct a new trial. Except in seasons of extraordinary drought, it appears that the plaintiffs have had an abundant supply of water for the use of their mills. A drought is a public and common calamity ; and the defendants, in the reasonable and customary exercise of their rights, ought not to be made liable for the damages which the plaintiffs may have sustained at such a season.
    If the plaintiffs have not acquired by grant an exclusive right to the water of this stream, the defendants are not accountable to them. The plaintiffs were limited as to the height of their dam ; undoubtedly for the purpose of reserving to the use of the grantor and his assigns, the use of the mill-seat above. Parcel or not may be shown by parol. A covenant cannot restrain, if the grant does not. It does not run with the land, if the party has no interest in the land. The plaintiffs have nothign more than a right, in common with the defendants, whose rights are the same, in this respect, as if derived from a stranger. It is true that the mill above was then only a fulling-mill ; but the defendants were not limited in the use of the water to a fulling-mill only. The community of use was for any kind of mills. And, unless the plaintiffs can show an express and exclusive grant or prescription, the stream is to be enjoyed in common, by all the occupants. If the defendants nave used their rights for their own benefit, in a reasonable manner, and for the ordinary purposes of their mill, they ought not to be answerable for any indirect or consequential damage. If we h|.d a right to erect a mill, which cannot be denied, vo..-had a right to use so much of the water as was sufficient to turn it. No doubt, an action lies for an improper or unlawful *use of the water. The case of Saunders v. Newman, (1 Ba > &f Aid. Rep. 258.) was for forcing back the water, and injuring the plaintiffs mill. The obstruction must be such as to prevent the water from flowing in its usual and accustomed course The principle of that case does not militate against the defendants. The doctrine is, that the water of a running stream cannot be so obstructed or stopped in its natural flow, as injure another. Now, the evidence in this case shows, that there has been no waste of water by the defendants, nor any obstruction of its natural course. The plaintiffs can only have a dam of three and a half feet; and the defendants, by erecting an excellent dam, to raise a head of water, have done a thing most beneficial to the plaintiffs. If the! defendants had no right to do this, their mills may be as well destroyed. If the facts are attentively examined, it will be manifest, that the want of water was caused by the drought alone. The evidence shows that the defendants were particularly careful to use the water in a manner the least detrimental to the plaintiffs. Except in the months of July, August, and September, in 1815 and led6, the plaintiffs had water enough. (Here the counsel entered into a particular examination of the facts.) The plain-' tiffs saw the defendants erecting their dam and mills, and never made an objection or complaint. Equity would grant an injunction against a suit at law, under such circumstances. (2 Equ. Cas. Abr. 522.)
    The jury must have misunderstood the principles of law laid down by the judge, or disregarded them; or they must have been led to believe, from the paper delivered to them, that if the defendants had detained the water unreasonably, the plaintiffs were entitled to the damages stated, without making allow-anee for the common calamity of a drought.
    
      
       u Celui qui a une source dans son fonds, peut en user á sa volontc, sauf le droit que la proprietaire du fonds inferieur pourrait avoir acquis par titre ou par prescription.”
      Celui dont la proprietc bord une eau courante, autre que celle qui est declarce dependance du domaine publique, par 1’artiole, &c.—peut s?en servir & son passage pour Irrigation de ses proprietes.”
      i: Celui dont cette eau traverse l’heritage, peutmome en user dans 1’intervalle quVlle y parcourt, mais a la charge de la rendre, a la sortie de ses fonds, a son cours ordinaire.”
    
   WoodwoRTir, J,,

delivered the opinion of the court. In this cause the defendants apply for a new' trial on several grounds: 1st. That the verdict is against la.w.

2d. That the judge misdirected the jury, and admitted im proper evidence.

3d. That the verdict is against the weight of evidence.

#4th. That the damages are excessive.

For the plaintiffs, it was contended, that, in consequence of the grant from David Defreest to Thomas L. Whitbeck, under whom they derived title, a right to the undisturbed use of the water was acquired, and that the plaintiffs, as prior grantees of a common grantor, and as prior occupants pursuant to their grant, can sustain the present action against the defendants, and are entitled to recover the damages they have sustained. The grant has no bearing upon the point, whether the defendants are liable, but leaves it to be decided upon different principles. Defreest granted two acres of land, the privilege of digging a raceway or canal, and also of erecting a dam. to raise the water three feet six inches higher than the dam then was, with liberty to draw the water out of the kill through the canal so to be dug. The words of the grant being definite and certain, they are not to be extended by construction, so as to deprive the grantor of his mill privileges at other places on the same stream. Whitbeck''s grant is satisfied by allowing him to erect a dam, and by means thereof to draw' the water from the creek to the canal: it does not convey the use of all the water, by a regular flow, uninterrupted by mills,.or water works above the plaintiff’s dam, and within the limits of the grantor’s right, but so much only as could be obtained consistently with the right the grantor had, to erect mills and place dams above : It was intended that each party should have a community of right to the use of the water, leaving the question, what shall constitute a lawful use, to be settled by the general principles of law, independent of the grant, should a conflict arise, thereafter, between the grantor and grantee. <>i their assigns.

Nor does the prior occupancy of the plaintiffs give them an exclusive right to the undisturbed use of the waters. In the case of Platt v. Johnson and Root, (15 Johns. Rep. 213.) Thompson, Ch. J., says, “To give such an extension to the doctrine of occupancy would be dangerous and pernicious in its consequences. The elements being for general and public use, where the benefit of them is appropriated to individuals, by occupancy, this occupancy must *be regulated and guarded, with a view to the individual rights of all who have an interest in their enjoyment.”

Neither party, then, having a superior right, by grant or prior occupancy, but both being, entitled to a common use, the inquiry is, Have the defendants withheld the water from the plaintiffs’ mill, and wasted it either wantonly or unreasonably? It. is a question of law, undoubtedly, whether the facts in any given case establish a right to recover; what the facts are, is exclusively within the province of the jury, subject to the review of the court, when an application is made to set aside the verdict. The common use of the water of a stream, by persons having mills above, is frequently, if not generally, attended with damage and loss to the mills below; but that is incident to that common use, and, for the most part, unavoidable. If the injury is trivial, the law will not afford redress; because every person who builds a mill does it subject to this conlin gency. The person owning an upper mill on the same stream, has a lawful right to use the water, and may apply it in order to work his mills to the best advantage, subject, however, to this limitation, that if, in the exercise of this right, and in consequence of it, the mills lower down the stream are-rendered useless and unproductive, the law, in that case, will interpose, and limit this common right, so that the owners of the lower; mills shall enjoy a fair participation ; and if, thereby, the owner» of the upper mill sustain a partial loss of business and profits,; they cannot justly complain, for this rule requires of Ihem no more than to conform to the principle upon which their right; is founded. It cannot, then, be admitted, that the defendant»: may use the water as they please, because they have a right tft a common use, although their works may require all the water, in order to derive the greatest profit. The plaintiffs' rights must tie regarded ; they must participate in the benefits'-of the stream, to u reasonable extent, although the defendants’ profits may be thereby lessened. If the defendants insist on the unrestricted use of the water, and appropriate it accordingly, and this proves destructive to the mills below, the law in that case allows the party injured a compensation in damages, to the extent that, under all the circumstances, shall be considered an equivalent: In #that event, the plaintiffs receive no more than they would have realized by their business, had the defendants permitted the water to flow in a reasonable manner. If the defendants had run short heats in 1815 and 1816, it would have materially benefited the plaintiffs’ mills ; whether it would have enabled the plaintiffs to manufacture 50 or 70 barrels of flour in a day, is not ascertained, but there is no doubt that the quantity manufactured would have been considerably increased.

The jury have passed on the facts submitted to them. The verdict ought to stand, unless it is against the weight of evidence. or the jury were misdirected in point of law. It is contended, on the part of the defendants, that the judge did not instruct the jury correctly, as to the law applicable to the ease. After having stated that the first question would be, whether the injury sustained was in consequence of the drought; and, secondly, whether the plaintiffs’ dam was higher than it was agreed to be, the judge proceeded to state the law, and illustrate the principles upon which the action could be sustained. The objection seems to be, that the charge was not explicit, in stating what was right and lawful; but submitted to the jury “ whether the manner in which the defendant had used the water, in 1815 and 1816, was not inconsistent with the plaintiffs’ right.” It will be seen, I apprehend, that this is a mistaken view of the subject: the charge admits that the parties had equal rights to the use of the water, but that it was not correct lo say, the defendants could use it as they pleased ; although they were entitled to the use of all the water of the stream, yet they could not lawfully use it “ in an unreasonable manner, so as to destroy those below on the stream.” The judge explained this general position by a number of pertinent remarks, and intelligibly, I think, stated the law to the jury. The gravamen is, that the injury complained of is destructive of the plaintiffs’ rights: that, if the principle contended for by the defendants can be supported, the plaintiffs’ mills, in a dry season, would be nearly useless. How, then, could the jury be in doubt as to the law, when the judge informed them it was unlawful for the defendants to use the water so as to destroy the mills below, and then ^submitted' to them, whether the manner of using the water by the defendants had not been materially injurious, and destructive to the plaintiffs’ mills. This is substantially the charge as delivered, in which the law was correctly laid down, and the questions of fact growing out of the case submitted, in a proper manner, to the jury.

But it is urged, that the paper containing a calculation of the damages sustained was improperly admitted. The judge observed to the jury, that the results of the subtractions and multiplications on the paper were correct, and that it must be used only to ascertain such results, but not in relation to any other fact proved on the trial; it could not, therefore, come within the rule which prohibits the delivery of writings not sealed to the jury, when they retire to consider of their verdict; (1 Tidd. Pr. 795.) but what seems to remove every objection is, that it may fairly be inferred, that the jury were not influenced by that calculation in giving their verdict. (3 Johns. Rep. 252. Tidd. 799. 779.) If they had assumed that calculation, the damages would have been considerably more than double; they must have, then, taken a different rule in reducing the damages 1,100 dollars below the amount claimed by the plaintiffs.

It is further contended, that the verdict is against the weight of evidence, and therefore a new trial ought to be granted. The question is, not whether the court might have differed from the jury, had the facts been submitted to their decision, but whether the testimony is so unequally balanced, that, in the exercise of a sound discretion, they are required to semi the cause to another jury. Without going into a detail of the evidence, I think I am warranted in saying, that, although there was conflicting testimony, and some difference of opinion, whether the injury sustained was in consequence of the drought in 1815 and 1816, there is but little doubt tfiat the natural flow of the water, uninterrupted by the defendants’ works, would have been sufficient, or nearly so, for the plaintiffs’ mills; and that, low as the stream was, during those seasons, had the defendants allowed the plaintiffs that reasonable participation in the use of the water, which by law they had a right to require, the damage sustained would have been materially less, if *not inconsiderable; but, allowing that the: evidence does not conclusively establish this fact, I am satisfied that the verdict on this point was not against the weight of evidence. With respect to the question, whether the use of the water by the defendants was such as to prove ruinous and destructive to the plaintiffs’ mills, it cannot well be doubl' d, that if the injury was not occasioned by the drought, it rcsiihi d from the acts of the defendants. Their works required double the ququntity of water used by the plaintiffs’ mills; they shut down their gates for several hours, and then let out the wr.mr in torrents; the plaintiffs’ dam could not be constructed s<> ¡i-¡ to detain more than a small portion ; the surplus was, consequently, wasted. The jury, on a review of the tes-liim>ii\. must have been satisfied that the plaintiffs had made out a ease entitling them to redress, according to the general principles of law laid down by the judge; and the court consider that evidence sufficient to warrant such a conclusion.

It has been argued, that the damages are excessive, and that the judge should have instructed the jury, that if the defendants were liable, it could only be for the use of the water beyond their relative proportion. The court do not perceive any misdirection in this particular ; it followed, as a necessary consequence from the charge, that, in estimating the damages, the jury must be governed by this principle. It is not claimed by the plaintiffs, that any right to recover arises for the use of such relative proportion, but that the defendants, having unreasonably appropriated the water, in carrying on their own works, so as to deprive the plaintiffs of a beneficial use of it, thereby made themselves liable. In assessing the damages, it was undoubtedly proper to consider, that in 1815 and 1816, there was a great drought, and to make all proper deductions, as far as that cause had contributed to the plaintiffs'" injury; there is no reasonable ground to believe, that the jury were inattentive to this circumstance; the amount of the verdict is less than one half of the damages proved.

In refusing to grant a new trial, the court do not intend to question the law in Platt v. Johnson & Root, (15 Johns. Rep. 213.) This case is clearly distinguished, and does %ot impair that decision. In the case referred to, the court say, “ The principle sought to be established is, that a previous occupancy of land upon a stream of water, and an appropriation of the water to the purposes of a mill, gives such a right to the stream in its whole extent above, as to control the use of the water, so as to prevent any subsequent occupant from using or detaining the water to the least injury or prejudice of the first occupant; that unless the principle thus broadly stated, could be supported, the plaintiff must fail.”

Now, in this case, the right to recover is not placed on the ground of prior occupancy, and when the facts in the two cases are compared, it will be seen they are materially different. In Platt v. Johnson & Root, it is stated, “ that in very dry seasons the plaintiff had occasionally to wait for the water, until the defendants had raised a pond sufficient to turn their mills it is not alleged, that the water was let out in such quantities as to become lost to the plaintiff, or to deprive him of a beneficial use. but, on the contrary, “ he might so alter his dam as to save all the waste water; that in dry seasons the usual quantity of water in the stream was sufficient to grind from ten to twenty bushels in a day, but when the grist-mill had a full head of water, it would grind sixty or seventy bushels a day, and that the plaintiffs mills were turned with much more force when the defendants raised their gates, by reason of the increased quantity of water.” From this statement, it is evident that the plaintiffs damages must have been trifling; that there could have been no well founded complaint that the watei was wasted, but, on the contrary, it may be inferred, that the defendant’s dam was rather beneficial to the plaintiff than otherwise.

The court are, accordingly, of opinion, that the motion for a new trial must be denied,

Motion denied. 
      
       Vide Livingston v. Adams, 8 Cowen, 175. Stiles v. Hooker, 7 Cowen, 266.
      
     