
    Cyrenius C. Torrence et al., Respondents, v. Ansel F. Conger, Appellant.
    (Argued January 23, 1874;
    decided February 3, 1874.)
    This action was for a breach of covenant in a grant of land with a grist-mill and flouring-mill, and machinery therein. The deed conveys the premises, “ together with the privilege of taking from the mill-race 375 cubic inches of water under a thirteen feet head at all times when there shall be so much water in said race more than shall be necessary to drive advantageously the grist-mill, upon above described premises, with two run of stones, one saw-mill, as the same is now used-on said race, the Camp factory, the furnace, the carding and cloth-dressing establishment, and the planing-mill, as said furnace, carding and cloth-dressing establishment and planingr mill are now used.”
    
      The deed provided that the grantee should hear and pay the proportion of the necessary expenses of repairing and rebuilding the dam, abutments, gates and race used to conduct the water which the said quantity should bear to the whole quantity of water used for machinery on the said race. The grantees were to have the preference in the use of water for two run of stones over all other machinery on the race, and had the right to clean out and deepen the tail-race at any time. The defendant covenanted and agreed “to furnish the said 375 inches of water hereby conveyed in said race, so that the same may be used at all times except all such reasonable times as may be necessarily consumed in making repairs on said dam, rebuilding the same, and repairs on the abutments, gates and race.” It was stipulated in the deed that the defendant was not to furnish the 375 inches of water in the time of drought when there was not sufficient water in the Cattaraugus creek to supply the same, but was, during such scarcity, only to furnish such as run.
    The race was obstructed by ice and “ slush ” during the winter, and it only gave a head of eleven feet six inches. The referee decided that plaintiff was entitled to an amount of water equal to 375 inches, under a head of thirteen feet, save in times of repairing, etc., and of drought; that defendant was not bound to reconstruct or raise his dam so as to give that head, but that the covenant was satisfied by furnishing the amount of water under a less head, and found that defendant did not furnish the water thus covenanted for. The defendant alone appealed. Held (Allen, J., dissenting), that the quantity of water granted was the amount that would pass through a space of 375 inches under the pressure of a head of thirteen feet; that the grantee was entitled to that amount over and above what was necessary to run the mills and drive the machinery specified, and not simply what would be left thereof after deducting what should be used by the owners of the prior right in the proper exercise thereof; and that defendant was bound to make reasonable efforts to remove ice and slush, which prevented the water flowing into the race, plaintiffs being liable for their proportion of the expense thereof. Groves, J., also expressed the opinion that plaintiffs were entitled to his quantity of water under a head of thirteen feet; not simply to the quantity which would he discharged under that head to be taken at a less head, and that defendant was bound to raise his dam to give that head; but as plaintiffs did not appeal, the question was not presented.
    
      John Gcmson for the appellant.
    
      Samuel Hand for the respondents.
   Grover, J.,

reads for affirmance.

All concur, except Alleh, J., dissenting.

Judgment affirmed.  