
    Henry B. Boynton et al. versus Isaac M. Rees.
    Where a grant was made of a right to erect and maintain a dam from the grantee’s land on one side of a stream, to the grantor’s land on the other, at about die distance of sixty rods below certain mills of the grantor, and a dam was built more than sixty rods below, and afterwards, without any objection on the part of the grantor, was removed twenty rods higher up the stream, but was still below the sixty rods, such removal was presumed to be within the intent of the parties to the conveyance.
    
      Held, also, that the grant was not invalid because no consideration was mentioned in the deed ; and that to avoid it as a voluntary conveyance fraudulent as against subsequent purchasers, the party objecting to it must prove that no consideration was given.
    The erection of the dam and the occupation of it six months in the year by the grantee, it being occupied the other six by a third person, were held not to be conclusive evidence of notice of the grant, as against a subsequent purcl oser of die grantor’s land.
    A purchaser of land without notice of an incumbrance, may convey the same free of the incumbrance to a purchaser who has notice.
    Where a witness who had assisted in erecting and maintaining a mill-dam, and had used it long enough to create the presumption of a grant of an easement in the stream, stated that his right was derived from a written agreement, it was held, that his testimony of the terms of the agreement was inadmissible, without evidence of the loss of the instrument, to prove the title to the easement.
    This was trespass qu. cl. fregit for entering the plaintiffs’ dose and pulling up and tearing away his dam across Williams’s River.
    The defendant pleaded, 1. the general issue, which was joined : 2. that the locus in quo, which he described, was his soil and freehold, being on the west side of the river.
    The plaintiffs replied to the second plea, that before the defendant had any estate, viz. August 21, 1794, Elijah Williams was seised of the land described in the plea, and on that day, by his deed, granted to John Newall junior the right to erect and maintain a dam across the river and over the close described ; that Newall afterwards entered and built the dam, and conveyed the same to the plaintiffs ; and then, by way of new assignment, alleged a trespass on the plaintiffs’ land on the east side of the river.
    In the rejoinder the defendant denied the seisin of the plaintiffs, and as to the new assignment, pleaded not guilty ; and in a second plea to the new assignment, he averred a license from the plaintiffs.
    
      Issues were joined on these pleadings.
    At the trial, before Parker C. J., the plaintiffs produced in evidence the deed of Elijah Williams to John Newall junior, dated June 30, 1794, of a lot of land on the east bank of the river, which deed was recorded September 15, 1795.
    On August 21, 1794, Williams, by an indenture made between him and Newall, conveyed to Newall the right to build and maintain a dam across the river at about the distance of sixty rods below the mills and iron-works of Williams, and adjoining on one side of the river to land lately sold by Williams to Newall, on condition that the dam should not so raise the water as to obstruct the working of the mills or ironworks ; and Newall covenanted for himself, his heirs, &c. and assigns, to observe the condition. No consideration is mentioned in the indenture.
    The plaintiffs claim all the right acquired by Newall under these conveyances.
    A dam was built across the river by Newall in 1794 and has been since maintained there by him and by those who claim under him, from 1794, except that it has been removed about twenty rods further up the river", but not so high as to be within sixty rods of the mill and iron-works mentioned in Williams’s grant, and it has remained some years in the position it was in when the supposed trespass was committed.
    The dam, however, was built at the joint expense of Newall and one Philander Rathbone, who had purchased of Williams a lot of land on the east side of the river next north of Newall’s lot, and who had enjoyed by Williams’s consent, without any deed, a small water privilege on the east side for working a fulling-mill.
    Rathbone testified, that by agreement with Newall, he paid half the expense of building the dam, and that before he sold his interest, he kept one half of the dam in repair ; that by his agreement with Newall, be had the right to the watei from August or September 20th, every year, to March 1st, and that Newall had the same right the rest of the year ; and that each had the exclusive right for their respective portions of the year, except when there might be more than sufficient water to carry on (heir respective rights. It appeared however, from Rathbone’s testimony, that there was a written agreement between him and Newall. His evidence in relation to the agreement was objected to, because there was no sufficient proof that the written agreement was lost or destroyed ; and the judge rejected his testimony in relation to the agreement, but allowed it so far as it related to hia payment of half the cost of building the dam and repairing it, and to the use and occupation of it, as before stated.
    It appeared that the dam had been occupied and kept up by several persons claiming under Rathbone by conveyances of the buildings used by him in the clothier’s business, down to the time of the defendant’s occupation.
    The defendant claimed title to the land on the westerly bank of the river on which the western end of the dam was placed, under a deed, dated October 30th, 1803, of Elijah Williams, the original owner of the land on both sides, to Enoch W. Thayer, from whom the land came to the defendant by several mesne conveyances. The deed to Thayer and these mesne conveyances, did not mention the easement which had been granted to Newall. The defendant also claimed the privilege of the stream, and a right in the dam, by virtue of the agreement between Newall and Rathbone, and the occupation of the same as above stated.
    In regard to the defendant’s title by virtue of his land on the west bank of the river, the plaintiffs contended that it was subject to the privilege or easement acquired under the indenture of August 21, 1794, between Williams and Newall.
    This indenture was not on record at the time of Williams’s conveyance to Thayer; but there was evidence tending to show that Thayer at that time knew of this indenture. There was also direct evidence, that the defendant knew of the existence of the covenant in the indenture, when he purchased.
    The judge considered the occupation of the dam by the plaintiffs and those under whom they claim, and the actual joining of the dam to the land on the western bank, as sufficient notice to all who claimed under Thayer, and that the covenant of Williams in the indenture, in regard to the use of the land for the dam, constituted a right against the subsequent purchasers, though the covenant was not registered.
    
      
      Sept. 9th.
    
    
      Sept. 12th.
    
    All those who have owned the fulling-mill undei Rathbone, have used the water only for the purpose of working that mill.
    A nonsuit or default was to be entered, or a new trial to be granted, according to the opinion of the Court.
    
      Dwight and Porter, for the plaintiffs.
    
      Bishop and Byington, for the defendant.
   Parker C. J.

delivered the opinion of the Court. This case cannot be decided, we think, without a trial by jury, in order to ascertain some facts in controversy, which are essential to a correct view of the case.

In the first place, as to the plaintiffs’ title to the locus in quo, it depends first upon the conveyance by Williams to Newall, of the right to lodge his dam upon the west side of the stream. This instrument, we think, gave the right to fix the dam anywhere within the limits mentioned in the instrument ; and the change of its original position, acquiesced in by the proprietors of the land, was justifiable, and will be presumed to be according to the intention of the parties to the conveyance. This settles one point.

We also think that the objection to the instrument, because no consideration is mentioned in it, is invalid. The deed itself imports a consideration, and to avoid it as a voluntary conveyance fraudulent against subsequent purchasers, the party objecting must prove that no consideration was given.

But the difficulty in this part of the case with the plaintiffs, is the want of notice of the existence of this right in them, when subsequent boni fide purchasers took their conveyance of the land on the west side, after Thayer, against whom, personally, notice is sufficiently proved. Whether those to whom Thayer conveyed are to be charged with notice, is matter for the jury. The facts of the existence of the dam at the time of their purchases and of the occupation of it under Newall, are not of themselves notice ; though with other facts which may be proved, they may be satisfactory evidence of notice. The fact, that the present defendant had direct notice when he purchased, is not conclusive against him, according to the principle established in Trull v. Bigelow, 16 Mass. R. 406, which we believe to be approved law.

The other branch of the case, which relates to the supposed right of the defendant under Rathbone to a tenancy in common with the plaintiffs, is also attended with difficulties, which can be removed only by a trial. Had Rathbone not stated, that whatever right he had, subsisted in a written agreement between him and Newall, the fact of his having aided in building the dam by paying for one half, and using it so long for his fulling-mill, would make it a fair case for the presumption of a grant. But there being such a writing, it ought to be produced, for it may so qualify Rathbone’s right, as to destroy any claim now under him. At the trial, it did not appear that the paper was lost, or that any pains had been taken to piocure it. On another trial, it may be produced by one party oi the other, for it is certainly doubtful on which side it will be favorable ; or the party seeking it may perhaps entitle himself to proof of the contents by Rathbone. Under these circumstances a trial must be had; which indeed was expected when the cause was opened the last time, it being taken from the jury, with a view to settle such questions of law as might arise out of controverted facts.

New trial granted. 
      
       See Jack v. Dougherty, 3 Watts, 151; Den v. Ogden, 4 Wash. C. C. R. 139; Briggs v. French, 2 Sumner, 251; Green v. Thomas, 2 Fairfield, 338 Chitty on Contr. (4th Am. edit.) 4, note 2.
     
      
       See 1 Story’s Comm on Equity, 396, 415; Hagthorp v. Hook, 1 Gill & lohna. 270.
     