
    * Hanna v. Clarke, Miller & Hall.
    November Term, 1878,
    Richmond.
    I. For many years If owned a grist-mill and II a sawmill, both of which were propelled by water power, the water taken from the same dam and when there was not sufficient water in the dam to propel both, the grist-mill had the preference in the use of it. In 1851 If sold his grist-mill, with the preference to a certain quantity of water to C; and C changed it into a paper-mill, and changed the water-wheels from breast to over-shot wheels, which required the taking the water from the dam on a higher level. Soon after the fitting up the paper-mill C filed his bill alleging that II was running his saw-mill so as to interfere with the work of his paper-mill, and asking for an injunction; and II replied that C was using more water than had been used by the gristmill. — Hiipn:
    1. decision in This Case. — That the relative rights of the respective proprietors of the grist and saw-mill to the water power, continued the same after the sale to C that it was before that sale.
    2. Same. — C had a right to convert his grist-mill into a paper-mill, and was entitled to the same priority over the owners of the saw-mill in the use of the wafer power for the operation of tile paper-mill, to which they were previously entitled in the use of the water power for the operation of the grist-mill, but to no greater extent.
    3. Equity .1 ii risd iel ion. —The case is one for the equitable jurisdiction of the court; and the court should proceed to ascertain, define and settle the rights of the parties to the use of the said water power.
    This case was heard in Staunton, but was decided at Richmond.
    _ Edwin Erwin, of the county of Augusta, died prior to February, 1816. At the time of his death he owned, among other property, about eight acres of Hand lying on Mosscy creek in said county, on which he had erected a grist-mill and saw-mill, both j of them operated by water from a dam built \ across the creek, and drawing the water by separate channels. By his will, which was published in January, 1813, he gave one-half of this property to his son James, and the other half to his wife and1 small children, of whom there were two, one named Hannah, who afterwards married Abraham Hanna, and the other named John. In September, 1818, James Erwin sold and conveyed to John Randes his half of this property. In January, 1827, John Landes sold and conveyed to Abraham Hanna “one-half of a certain let of ground, including one-half of the interest of the saw-mill, forebay and part of the tail race; alsb the use and benefit of the water for said saw-mill, when it can be conveniently spared from the grist-mill so as not to do it any injury — that is, the grist-cm® — said lot of ground to be occupied for no other purpose than for saw-logs and planks.” This gave to Hanna in his own right one-half and in right of his wife one-sixth of the saw-mi’ll property. In February, 1835, Landes sold and conveyed to John Erwin his half of the mill property, except what he had conveyed to Hanna. And in September, 18-36, Hanna and wife conveyed to said Erwin the interest of Mrs. Hanna in all the property except the saw-mill property. Mrs. Erwin died in 18-51, and by her will gave her interest in the whole property, mill and saw-mill, to J-ohn Erwin; so that John Erwin then owned the whole of the grist-mill property, and two-sixths of the saw-mill; and Hanna and wife owned the other four-sixth in the saw-mill property.
    When Edward Erwin died there was one pair of burrs and one pair of choppers in the mill, and this continued until the purchase by John Erwin from Landes *and Hanna and wife. He then put in another pair of burrs, and probably added other improvements. But although it had always been the case that the mill was understood to have the preference to the water when there was not enough for both, no difficulty seems to have occurred between the owners of the mill and saw-mill in relation to it.
    By deed bearing date January, 1851, John Erwin and wife conveyed to James T. Clarke, Anthony Miller and Jefferson Miller “all their right, title and interest, both present and prospective, to and in a certain merchant-mill property and saw-mill property situated upon Mossey creek, in the county of Augusta, bounded as follows, viz:” setting out the boundaries, “containing eight acres, more or less, with all and singular the appurtenances thereto belonging or in anywise appertaining to said interest conveyed in the above premises.” And they set out the interest conveyed as five-sixths of the mill property, the other sixth on the death of Mrs. Erwin; and one-sixth of the saw-mill property and another sixth on Mrs. Erwin’s death, and _ in the 'meantime they were to hold this interest without rent. “The water right conveyed with the said merchant-mill property to be not less than the quantity of water which a chute five feet two inches by three and a half inches under a three feet head of water or the equivalent, would discharge — the preference to the above extent over other right, in point ©f water, having always been conceded to said merchant-mill property, both before ■ and since the death of the testator, from whom the rights were derived.”
    The vendees, Clarke, Miller and Hall, purchased this property for the- purpose of establishing a paper-mill, and soon after their purchase they proceeded to convert the mill into a paper-mill. In doing this they changed the large water wheels which propelled the machinery *of t-he mul, which had been breast wheels, into over-shot wheels, which required the water to be taken from the dam at a higher level, and which therefore were more readily affected by the lowering of the water in the pond; and very soon a controversy arose between those parties and Hanna, who was operating the sawmill. ■ In August, 1851, they filed their bill in the circuit court of Augusta county, in which they set out their right to the water as granted by Erwin and wife, and alleged that this preference of the mill to the water had always been recognized, and was recognized in the deed from Landes to Hanna; and that said Hanna was so using the water at his saw-mill as to interfere most materially with the work of their paper-mill, and inflicting upon them irreparable damage. And they prayed that 'he might be enjoined from using the water from said dam in such way as to stop or obstruct their machinery. And as some of the purchase money had not been paid, they prayed that Erwin might be restrained from collecting it until he can clearly establish plaintiff’s right under his deed to the use of the water as provided.
    Hanna answered the bill at much length. He denied that there ever liad been a usage giving preference to the water to the grist-mill to the extent Erwin had undertaken to convey to the plaintiffs. He says that the parties being interested in both mills, it was usual in seasons of extreme drought, and when water was scarce, and both mills could not run at the same time, to give preference to the grist-mill. These occasions, however, were very rare, the supply of water being sufficient at almost all seasons for both mills. Under these circumstances and with this understanding respondent accepted the deed from Landes. He insists that the provision in that deed was intended to express nothing more than that, for the *benefit of the grist-mill, a sufficient supply of water to keep it running, as it then was, should be yielded to it; so that the grist-mill might not be injured in the business it was then doing. He says that since the year 1827 and down to the obtaining the injunction in this suit, he has enjoyed the uninterrupted use of such a supply of water from the dam, which supplied both the grist and saw-mill, as to keep his saw-mill constantly at work, except at rare and remote intervals of time, when extreme drought had so reduced the flow of water, as that it became necessary for a short time to suspend sawing, in order that a head of water might be accumulated. He insists that the paper-mill requires much more water than was required by the merchant-mill under any of the arrangements of wheels and machinery that has existed since 1829. And he insists that the water right granted by John Erwin to the plaintiff, to use as much water as a chute five feet two inches wide and three and a half inches deep under a head of three feet, is a direct infringement of the rights of respondent; that such a chute will discharge more water than ordinarily flows in the stream. And he asks that commissioners may be appointed to fix and establish a permanent water mark to regulate the rights of the parties.
    A great many depositions were taken by both parties, and of course their views and opinions were conflicting. The cause came on to be heard on ihe 7th of July, 1856, when the court perpetuated the injunction as to Hanna, with costs; but dissolved it as to Rrwin, and dismissed the bill as to him. But the decree was to be without prejudice to the right of Hanna to sue at law, &c. And thereupon Hanna applied to this court for an appeal.
    Hugh W. Sheffey, for the appellant.
    *Xo counsel for the appellees.
    
      
      Equity .? if ri'tiiftiim. — See Switzer v. Mc-Cuilock, 76 Va. 777, citing the principal case; 2 Min. Inst. (4th Fd.) 23.
    
   MONCUSE, P.,

read the decree.

1. The court is of opinion that the relative rights of the respective proprietors of the grist-mill and saw-mill, in the proceedings mentioned, to the water-power capable of being derived from the dam on which the said mills were dependent for their operation, continued to be the same after the execution of the deed of the 2d day of January, 1851, from John Erwin and wife to Clarke, Miller and Hall, in the proceedings mentioned, as they were at the time of the execution of that deed.

2. The court is further of opinion that the said right of the proprietors of the gristmill were prior and paramount to the said right of the proprietors of the saw-mill; so that whenever and while there was not more than water-power enough for the operation of the grist-mill, the proprietors of the saw-mill had no right to use the waterpower so as to obstruct or affect the operation of the grist-mill.

8. The court is further of opinion that the proprietors of the grist-mill had a right, after they acquired the same, to convert it into a paper-mill, and were entitled to the same priority over the proprietors of the saw-mill in the use of the water-power for the operation of the paper-mill to which they were previously entitled in the use of the water-power for the operation of the gristmill; but were so entitled only to the same extent to which they were so previously entitled to the use of the water-power.

4. The court is further of opinion that the controversy in this case was a proper subject of equitable jurisdiction; and the circuit court, therefore, instead *of rendering the decree which it did, thus turning the parties out of a court of equity, in which their controversy was pending and might have been settled in a single suit, and leaving them to their remedy at law, where a multiplicity of suits would have been necessary, ought to have proceeded, according to the prayer of the bill, to “ascertain, define and setlle the rights of all parries to the use of the said water, and grant such other and further relief as is suited to equity and the nature of the case, &c.”

5. The court is, therefore, further of opinion that the said decree of the circuit court is erroneous; and it is decreed and ordered that the same be reversed and annulled, and that the appellant recover against the ap-pellees his costs by him expended in the' prosecution of his appeal aforesaid here.. And it is further decreed and ordered that, the cause be remanded to the said circuit; court for further proceedings to be had therein in conformity with the foregoing opinion and decree.

Which is ordered to be certified to the said circuit court of Augusta county.

Decree reversed.  