
    G. W. MILLER, Plaintiff and Appellant, v. W. N. VAUGHN, Defendant and Respondent.
    Watek-ditch—Ri&ht or Wat.—Where the owner of a tract of land granted to another the right of way for a mill-race, to conduct water from a stream above the land to a mill below it, the grantee did not thereby become entitled to use and appropriate the water of a small stream on the land of the grantor, which ran across the line of the race.
    Idem.—A grant of the right of way over land for a mill-race is merely an easement, and not a right to the land over which the race is constructed, nor to water flowing over the land. Such rights remain with the grantor, and no express reservation is necessary in the deed granting the right of way.
    Appeal from Tillamook County.
    On tbe sixteenth day of August, 1872, the respondent sold and conveyed to W. T. Baxter five acres of land for a mill-site, and on the same day, by a separate deed, conveyed to him a right of way across his land for a millrace, for the purpose of floating logs and supplying the mill with water, as follows:
    “This indenture, made the sixteenth day of August, 1872, between Warren N. Vaughn, of the county of Tillamook and state of Oregon, of the first part, and William T. Baxter, of the same place, of the second part. Whereas, the said parties, at the time of the sealing and delivering of these presents, are rightfully seised in fee a certain piece of land with the appurtenances, in the county of Tillamook aforesaid; and, whereas there is in course of construction a race upon a certain stream of water known as the Kilchis river, the said party of the second part. Now, therefore, know all men by these presents, that I, Warren N. Vaughn, in pursuance of said agreement, and in consideration of the sum of one dollar to me paid by the party of the second part, do hereby give, grant, sell, and convey unto the said William T. Baxter and his heirs and assigns, a right of way in and over the land, the strip of land being of the width of one rod, and running from the east side of said Vaughn’s place, thence westerly through said place to the saw-mill of said party of the second part, and the way is and shall forever be of said dimensions; and also, for the consideration above mentioned, the said Warren N. Vaughn do hereby give, grant, sell, and convey to the said William T. Baxter, his heirs and assigns, the right to enter into the said strip of land, to be used as a passage-way as aforesaid, for the purpose of floating logs and supplying water to said mill. The considerations of tbe above grant are as follows, the parties agreeing before the delivery of this deed: the said Baxter agrees where the race enters and leaves the inclosure of said Vaughn’s place, he will construct, or cause to be constructed, a good gate, for the purpose of preventing stock from entering the above-mentioned premises, and keep the same in good repair; the said Vaughn reserves the right of putting fences or bridges across the said race at any point he deems necessary.”
    At the date of the deed, Baxter had already commenced the construction of the mill-race from a point on Kilebis river about two and a half miles above the mill, toivards the land of Yaughn. The object in making it was to supply tbe mill with water from Kilebis river, and to float logs down to tbe saw-mill, and this could only be done by digging the race across tbe land of respondent,- wbicb was done after tbe right of way was obtained. Two small streams of water on tbe land of respondent ran across tbe ljne of tbe mill-race, one of wbicb is known as Yaughn creek, and since its completion, both of them flow into it. After tbe race was completed, a dam was made at tbe bead of it, to turn tbe water from Kilebis river into it. The dam only remained a short time, when it was washed away, and since then tbe mill has been supplied -with water during tbe rainy season of each year from Yaughn creek and tbS other small streams which flow into tbe race.
    During tbe time that Baxter remained tbe owner of tbe mill, be did not claim to have any right to tbe water in Yauglin creek, and tbe understanding between him and tbe respondent was, that tbe latter could take it, if be so desired, in a flume 'across tbe race and use it as be should think proper. And when Baxter did use it to propel tbe mill, it was by tbe license and permission of the respondent. In September, 1874, tbe interest of Baxter in tbe mill and its appurtenances, including tbe mill-race, was sold at sheriff’s sale, and became tbe property of tbe appellant. For some time after be became tbe owner of tbe mill tbe appellant did not claim tbe water in Yaughn creek as a right under tbe deed giving tbe right of way to Baxter for tbe mill-race, but finally concluded that be bad such right by virtue of tbe deed. In February, 1879, tbe respondent, by constructing a flume across tbe mill-race at Yaughn creek, diverted tbe ■water of that stream from tbe race into its ancient channel, for tbe purpose of obtaining water for bis cattle. And soon afterwards this suit ivas brought to restrain him from diverting it, and for damages for tbe alleged wrongful act.
    
      Yocum and Glarno, for appellant.
    
      Stott & Gearin, for respondent.
   Bv the Court,

Kelly, C. J.:

The deed made by the respondent to Baxter, on the sixteenth of August, 1872, is somewhat informal; but, after all, there is no difficulty in ascertaining what was the intention of the grantor when he made it, and what was actually granted by the deed. By a recital contained in it, it appears that Baxter was then in the act of constructing a race along Kilchis river, and the testimony shows that the place where the water was to be taken from the river was aboul one and a half miles above the upper end of respondent’s land. Baxter was about to erect a saw-mill on a small piece of land which he had purchased on the lower end of the same that belonged to respondent, and the object in making the race was to convey water from Kilchis river to propel the mill, and necessarily to take it across the respondent’s land.

By the deed the respondent granted to Baxter, his heirs, and assigns, the right of way over a strip of land, one rod in width, from the east side of his tract of land, to the sawmill on the west side, to be used as a passage way for the purpose of floating logs to the mill and supplying it with water. The right so granted was an easement, an incorporeal right; a right which was intangible. It was not the grant of a strip of land, nor of any water naturally flowing on the land, but simply the right to dig a race and conduct water in that race across the land of respondent, for the purposes specified in the deed. When an easement is granted, nothing passes as an incident to such grant but what is necessary for its reasonable and proper enjoyment. And notwithstanding the grant, there remains in the grantor the right of full dominion and use of the land, except so far as a limitation of his right is essential to the fair enjoyment of the right of way which he has granted. And it is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him because they are not granted. (3 Kent’s Com. 420; Maxwell v. McAtee, 9 B. Munroe, 20; Lyman v. Arnold, 5 Mason, 195.)

It appears from tbe deed itself, as well as tbe evidence in tbe case, that it was manifestly tbe intention, both of tbe grantor, wbo made tbe deed, and tbe grantee, wbo accepted it, that tbe right of way was given to enable tbe latter to conduct tbe water from Kilehis river, not from Yaughn creek, to tbe saw-mill. And it would be a perversion of tbe terms of tbe grant to say that, because tbe grantee neglected to repair tbe dam in tbe Iiilchis river, be thereby acquired tbe right to supply bis mill with water from a stream which never was intended to be granted to him, and which, in fact, never was granted. Even if tbe respondents bad granted fee simple title to tbe strip of land, instead of simply tbe right to take water over it, it is questionable whether Baxter, or bis assigns, would be authorized to divert tbe water in Yaughn creek from its natural channel, to the injury of tbe riparian owners below tbe race-way. It is sufficient for us to say that no such right exists under tbe deed of tbe sixteenth of August, 1872.

Tbe decree of tbe court below is affirmed with costs.  