
    Harris vs. Miller.
    Watercourse. Right of flooding land above. A right of permanently overflowing the land of another, by a mill dam to be constructed below his line, is a hereditament; and a contract for the sale of it must, therefore, be in writing. Acc. Bridges vs. Purcell, 1 Devereaux and Battle, 192.
    Partnership. One partner's bill single, effect of on the others liability. Where a contract of sale, which must, by law, be in writing, is made in writing under seal, with one partner, who gives his bill single for the price of the thing purchased, the other partner cannot be sued upon the consideration.
    Harris had prepared certain timbers with which he intended to build a mill on his own spring branch. Miller and one Hayter, having entered into a partnership to erect a mill upon the same watercourse just below the boundary of Harris’ land, proposed to purchase the timbers and also the right to back the water upon his land.
    A verbal agreement was accordingly made between them, whereby, in consideration that Hayter would confess a judgment before a justice for one hundred dollars in favor of a creditor of Harris, and that Miller would,stay it, Harris engaged to sell them the timber and grant them the right to hack the water upon his land.
    At this point Miller went off on a journey, and left Hay-ter to go on with the contract. Harris and Hayter drew up and executed, under their seals, a memorandum of the agreement of the following tenor — “It is agreed between Thomas K. Harris and Thomas B. Hayter, that said Harris sells to said Hayter certain mill timbers, prepared and some raised on his spring branch, for which said Hayter has paid one hundred dollars; and said Harris agrees — it being understood that Hayter is to put the mill upon Esq. Miller’s land on the same branch — that said Hayter shall have the right to back the water upon his land within twenty yards of the head of his highest spring, witness our hands and seals this 3rd April, 1837.”
    Hayter had already, on the 10th of March, executed his bill single promising to pay Harris’ creditor one hundred dollars one day after the date of the bill, and on the 6th of May, he confessed judgment upon it, but the judgment was not stayed by Miller. And the consideration, therefore, not being secured to be paid in the manner provided for in the verbal agreement between the parties, Harris sued Miller in the circuit court of Overton, in assumpsit, on the 21st of September, 1838, and declared in four counts upon the verbal agreement, specifying the terms of it in each with slight variations.
    The defendant demurred to the declaration, 1. because it showed no debt or demand due from the defendant to the plaintiff, but to the plaintiff’s creditor, 2. because the ac-' tion was founded upon a supposed promise to answer for the debt of another, and no profect was made of any written promise, &c. On argument of this demurrer at June term, 1838, it was sustained as to the second and fourth counts, and overruled as to the other two. To them the defendant pleaded, 1. non assumpsit, 2. that he had been ready and willing, and had offered to secure the demand of the plaintiff’s creditor in manner and form as the plaintiff in declaring al-ledged he was bound to do; but said creditor had refused to permit him to do it, or to accept of the same, and this, &c. Issues were joined upon these pleas, and at October term, 1838, they were tried^before his Honor, Judge Maecheanks, of the 13th circuit and a jury of Overton. The facts submitted to the jury were substantially as above stated.
    His Honor charged them in substance, that to entitle the plaintiff to recover, he should have guaranted the privilege of damming the water up his spring branch, to Miller as well as to Hayter, and said guaranty to Miller should have been in writing, a parol guaranty of such privilege, being of no validity. íhe verdict was for the defendant, and the plaintiff appealed in error.
    December 3.
    December 6.
    A. Cullom for the plaintiff
    insisted — 1. That a verbal license to dam the water upon the plaintiff’s land is valid.
    Such a license conveys no interest in land, it only grants a temporary and occasional right to make or cause an erection upon the land, or what is the same thing in principle, to overflow it with water. 7 Taunt. R. 374; 8 East, 308; 5 Moore and Payne, 712; 2 Harrison’s Index, 1450; 10 Yerger, 211.
    2. That Hayter and Miller made the agreement jointly and were partners in the transaction; and Hayter was author-ised by Miller to go on with the contract, and consequently the written agreement executed to Hayter, the partner and agent of Miller, would make Hayter trustee for Miller, and in equity secure to him a resulting trust. Watson on Partnerships, 75; Gow on Partnership, 49.
    3. It would not devolve upon Harris, the plaintiff, to prescribe how or to whom the conveyance should be made; the credit was given to both as partners, and he executed writings to Hayter, knowing he was the partner and agent of Miller; and he had a right to suppose that Hayter would have the writing so drawn as to effectuate the objects of the partnership, according to the rights and interests of the partners themselves.
    S. Turney, for the defendant,
    argued that the right to overflow another man’s land is a permanent interest and cannot be sold but in writing, and cited 1 Haywood, 248.
   Reese, J.

delivered the opinion of the court.

Upon the pleadings and proofs in this case, the circuit court charged the jury — 1. That a verbal agreement to concede the privilege of permanently overflowing the land of the plaintiff, by a mill dam to be constructed below his line, would not be valid, but would be within the statute of frauds: and 2. That the written agreement between the plaintiff and Hayter, securing to the latter, the privilege in question, Would riot authorize the plaintiff to maintain this action against Miller,

Note. In the English St. of Frauds, the words are lands, tenements or he-reditaments, or any interest in or concernig them. The words in italics are omitted in our statute. It is said, in Evans vs. Roberts, 12 Eng. Com. L. R. 377, that the words — lands, tenements or hereditments, are used in the statute to denote a fee simple, and the other words, to denote a chattel interest. The cases upon these latter words will be found collected in the text and notes, 2 Starkie’s Ev. 6 Am., from the 2d Eng. Ed. 347, 348. Chitty’s English Statutes, 370, note (m.)

The first proposition has been but slightly contested in argument, and it is well sustained by authority. The grant of such privilege confers a permanent interest in the soil itself, for the use of the mill to be constructed, and must, thereforé, be in writing.

But, with-regard-to the second proposition of the court below, it has been urged, that the court erred, because Hayter, with whom the written agreement was made, was to have been the partner of the defendant in the construction of the mill, and that, therefore, the latter could, in a court of chancery, compel Hayter to transfer to him a moiety of the legal title in the privilege. If the verbal agreement had béen valid, it may well be questioned whether the plaintiff, who, in the execution of it, violated its terms so far as to give a written concession of the privilege, not to the defendant and Hayter jointly, but to Hayter alone, should be permitted, in a court of law, to recover from the defendant, the consideration, upon the ground, that the latter could, therefore, protect himself against the wrong done him, by litigating the matter with his partner, and perhaps with the plaintiff, in a court of chancery.

But into that, it is not necessary to enquire, — for we have said that the verbal agreement was not valid. The only agreement, therefore, to which we can look, is the written one between the plaintiff and Hayter, to which the defendant appears^ to be an entire stranger. The concession of privilege, under the seal of the plaintiff, is made to Hayter alone; the promise to pay to the plaintiff the consideration is made under the sig^-nature and seal of Hayter alone. The written contract, on both sides, under the seals of plaintiff and of Hayter, excludes the defendant from benefit and liability, and he may well say to them both in this action, that the matter Was res, inter alios acta.

Let the judgment be affirmed;

2. Easements, being incorporeal rights, can only be created by deed, at common law — 2 Bl. Comm. 317; 4 Kent’s Comm. 190, 3 Id 452, 453 — and, being besides hereditaments, come within the words of the St. of Frauds. Fentiman vs. Smith, 4 East, 107; Thompson vs. Gregory, 4 Johnson, 41; Cook vs. Stearns, 11 Mass. R. 533; Bridges vs. Purcell, 1 Devereaux and Battle, 492, in which case, Judge Gaston, in a very satisfactory manner, collects and examines the leading cases, on the doctrine involved in the first pl. of this case.

For the nature of a mere water right, see Angell’s Treatise on the Law of Water Courses, C. 2 § 4. For the mode of conveying such right, same chapter, § 5. For the right of backwater andflowage, as depending upon grant, C. 4, § 3; and Gibbons on Dilapidations and Nuisances, c 10, § 12. And see ante Neal and Shelton vs. Henry, p. 17. In the note to this case, ante p. 22, it is stated that it is an authority that merely overflowing the plaintiff’s land is an actionable injury. On which point, see Gibbons on Dilapidations and Nuisances, c 10, § 9, 10, 11 and authorities referred to. The case of Williams vs. Morland, 9 Barnwell and Creswell, 910; — 9 Eng. Com. Law, R. 269, decides, that causing the water to flow against the plaintiff’s banks more impetuously than it would naturally have done, so as to injure them, is actionable. But the plaintiff must, in such case, alledge and prove actual injury. It will not do simply to show that by the defendant’s act the water flows more impetuously than it would naturally have done. So, in Wright vs. Howard, 1 Sim. and Stew. 190,-1 Eng. Cond. Ch. R. 95, the Vice Chancellor, Sir John Leach, is reported to have said — “It appears to me that no action will lie for diverting or throwing back water, except by a person, who sustains an actual injury.” See the book last cited, page 102. Merely throwing the water back, he thought not actionable. It must cause the plaintiff an injury, as by impairing the value of his land. It is difficult,however, to suppose a case where flooding one’s land would not be injurious.

[Reporter.  