
    Abner H. Elliott v. Abraham Sallee.
    On a natural mill-stream there were three successive dams and mills. E., being the owner of the upper and lower mills only, dug and opened a race-way on his own land from the dam of his lower mill to the stream above the dam of the middle mill, belonging to another person, so as to tap the stream there, and partially to divert its waters from the middle mill. Subsequently he purchased the middle mill, and became the owner of the three mills, and of all the lands affected by them, their dams, races, and appurtenances, and continued to use said race-way as an actual appurtenance to the lower mill, until, by deeds of even date, he conveyed said mills, with their appurtenances, to his three sons; the upper mill to J. E., the middle mill to J., and the lower mill to W.
    In an action by the owner of the middle mill, grantee of J., against the owner of the lower mill, grantee of W., to recover damages for the continued partial diversion of the water from the middle mill by means of said race-way; held: that the grantees of E., and those holding under them respectively, each took, and was entitled to hold his mill with its appurtenances, as it actually existed in fact and in use at the time of the conveyances.from E. Morgan v. Mason, 20 Ohio Rep. 401, followed and approved.
    Error to the court of common pleas of Brown county. Reserved in the district court.
    The facts of the case are, in substance, as follows:
    Over forty years ago, Edward Thompson erected a gristmill on White-oak creek, a natural water-course in Brown county, emptying into the Ohio river. A short distance below this mill, on the same water-course, one James Sidwell also owned a grist-mill.
    
      After these two mills were in operation, said Edward Thompson erected another grist-mill, on the same stream, below the Sidwell mill. That portion of the creek between the dam of the upper mill and the site of the lower mill makes a double curve. Above and below these points, the stream runs in a southerly direction. The upper mill is on the northerly return of the first curve, and the Sidwell mill is on the southerly return of the second curve. The two mills are nearly opposite each other.
    When Edward Thompson built the lower mill he cut a head race for it, which tapped the creek above the upper mill, at a point in the first curve, and the water thus diverted from its natural flow above the Sidwell mill, after serving the purposes of the lower mill, was emptied into the creek below the Sid-well mill. At certain stages, the water of the creek is not sufficient to run the three mills. The Sidwell mill requires more water than either of the others.
    In this state of the case, Edward Thompson, apprehending trouble in consequence of thus diverting the water to the lower mill, bought the Sidwell mill, and, being the owner of all three mills and the lands upon which the same stood, and through which the head and tail-races of each run, and upon both sides of the creek, at the points where the head races of each received the waters of the creek and dams, divided these lands and mill property, by deeds of even date, among his three sons, by ordinary recitals, describing the land upon which each mill stood, by metes and bounds, conveying the same with all the privileges and appurtenances, but saying nothing in the deeds about any mill, or about the right to the water passing over the lands of the three several grantees, and containing no restriction whatever upon the continued diversion of the water for the use of the lower mill. The father, Edward, deeded the upper mill to his son James; the middle, or Sidwell, mill to his son John, and the lower mill to his son William. The deeds to John and William describe the lands so as to include the respective dams, races, and mill of each; and the metes and bounds in the deed to John embrace bcth sides of the creek, from a point below the dam of the lower mill, to a point below the middle or Sidwel] mill.
    John Thompson afterward conveyed his mill, being the Sid-well mill, to Elliott, the plaintiff in error, by ordinary deed describing the premises by the metes and bounds of the land, as they had been described in the deed to him.
    William Thompson afterward deeded the lower mill to Sal-lee, the defendant in error, by ordinary metes and bounds, as in the deed to William.
    The defendant, Sallee, continued to receive, for the uses of his mill, the water through the head race Edward Thompson had cut for it, and there not being sufficient water for all three of the mills, in June, 1859, Elliott brought an action in the court of common pleas of Brown county against Sallee, to recover damages for the diversion of the water from the creek to his mill, thereby diminishing the power of his (Elliott’s) mill to do as much work as it' otherwise might.
    The case came to trial to a jury upon the pleadings and proofs, showing the foregoing facts, at the January term, 1860, of the common pleas, and resulted in a verdict and judgment for the defendant, Sallee.
    The plaintiff, at the trial, requested the court to give several propositions in charge to the jury as the law of the case, some of which were given, and others modified or refused, and exception taken.
    The point of controversy arises out of this charge of the court: That if the jury should find from the evidence that Edward Thompson had the title to the two mills of the plaintiff and defendant, and, by deeds of even date, conveyed the mill of the defendant to William Thompson, and the mill of the plaintiff to John Thompson, with the privileges and appurtenances thereunto belonging, without restriction, that then the verdict should be for the defendant, unless the jury should further find that the defendant or his grantor, William Thompson, had diverted or obstructed the stream above the plaintiff’s mill, since Edward Thompson made the deeds to his sons John and William.
    The plaintiff claimed, that, although Edward Thompson’s ownership of the two mills, might, while he continued to own them, give him the right to divert the water from its natural flow, so as to diminish the water power of the middle mill, yet after his unity of ownership and possession had been severed by the deeds to his two sons, the rights which existed prior to such unity of ownership and possession revived or were created anew.
    To reverse the judgment of the common pleas, the plaintiff filed his petition in error in the district court which was thence reserved to this court for decision.
    
      Marshall & Loudon, and £r. W. King, for plaintiff in error:
    1. The doctrine of unity of possession does not apply to a natural water course. In support of this position, we cite: Angelí on Water Courses, (5th Ed.), sec. 193, 194, and' note (1); 11 Conn. 321-3 ; 1 Chit. Gen. Practice, 215.
    2. Even if the defendant be correct in the assumption that unity in Edward Thompson extinguished (all right to that time and during the continuance of the unity, yet, on the severance of said unity, all prior rights as to each were made perfect for any subsequent infraction. In other words, the right thus extinguished would be created anew by the severance. In support of this, we cite : Angelí on Water Courses, sec. 195 and 196; 8 Mete. 466, 480-85; 10 Maine, 237-9.
    The radical difference between counsel in this case, grows out of the fact, that the defendant’s counsel claim that the right to the water of a natural water course is an “ easement ” which may be extinguished by unity of possession. We claim it is no such easement, or, rather, that it is not an easement at all, but a natural right, and exists by the laws of nature; whereas an easement is and can be only created by grant or prescription. See 1 Bouvier’s Law Die. 498; 1 Serg. & R. 298.
    If, therefore, the unity of title in Edward Thompson, did not destroy plaintiff’s after-acquired right to the middle' mill; or if the right was even extinguished, but revived by the severance in the deeds from said Thompson to his sons, the plaintiff was entitled to recover for the diversion of the water, and the common pleas erred in the judgment rendered. Angelí on Water Courses, secs. 99, 99a, 98 (note 2 and 3), 94, 95, (note), 97, note (1), 101a; Wright’s Rep. 380; 12 Wend. 330 ; 10 Johns 241; 2 Johns. Ch. 164; 17 Johns. 306; 13 Mass. 420.
    But, it is claimed that as to the surplus of water over and above the quantity necessary to run the upper and middle mills, said Edward Thompson possessed the right to appropriate that surplus. Admit this to be the law, in such case the plaintiff was not to be confined to the bare quantity necessary to propel his mill. He is entitled to the increased power of a surplus. Angelí on Water Courses, sec. 102; 17 Pick. 23.
    In any event, however, the proofs show that there was no surplus at the time complained of.
    It may be claimed that the use for some fifteen years gave the defendant and those through whom he claims, the right to divert the water through said tunnel. The proof shows that less than twenty-one years of an adverse claim to plaintiff and those under whom he claims has been exercised. Twenty-one years is necessary to bar plaintiff’s right. 3 Wend. 632; 10 Mass. 72; 2 John. Ch. Rep. 162.
    
      James JEL. Thompson and E). Gf. Devore, for the defendant in error:
    We claim that, Edward Thompson having acquired the title to the whole water course and the lands comprehending and bounding all the dams on the creek and the tunnel and the three mills, and having divided and apportioned the water in the creek, as in his judgment was best, among the three mills, by his deeds he conveyed and assured to each of his sons the divided water of the creek, and all the privileges and appurtenances thereunto belonging, in the same manner and to the same extent that he had enjoyed and used each. 10 Maine 233, 239; 10 Serg. and Rawle, 63-74; 5 Wend. 525.
    
      A. Gr. Thurman, also for defendant in error:
    1.. Nothing is more common than for the owners of land lying on small streams, like White Oak Creek, to straighten the course of such streams through their lands, by means of dams and ditches. This is frequently a very valuable means of improving their farms, or acquiring mill power, and is perfectly lawful provided the stream be restored to its natural channel before, or when, it reaches the land of the next proprietor below. Norton v. Valentine, 14 Vermt. 239; Webster v. Fleming, 2 Humph. 518.
    Suppose that a proprietor, after thus diverting the stream into a new channel and thus causing the old channel to become dry land, alien a portion of his farm embracing the old channel, by ordinary deed — who will pretend that the alienee has any right to require that the stream be restored to its ancient bed —or, which is the same thing, that he can maintain an action for the diversion ? Such a claim would be preposterous.
    But if the owner may divert the- whole stream as aforesaid, he certainly can a part of it — and his alienee of a portion of the old bed, can maintain no action for the diversion.
    •In this case, it would have been perfectly lawful for Edward Thompson, while he was the owner of all the land, to have diverted the whole creek through the race to the lower mill (now owned by defendant), and thus left the natural bed passing by the mill now owned by the plaintiff entirely dry. And upon his afterward aliening to his son John the tract now owned by the plaintiff, John would have acquired no right to have the stream restored to its ancient channel, nor any right of action on account of the diversion. . But, as before said, the same rule holds good, where the diversion is but partial.
    2. Edward Thompson being seized of the whole land, conveyed a portion of it (embracing the lower mill, and the dam and race thereunto appurtenant), to his son William by a deed containing no restriction whatever upon William’s use of the water. As before shown, Edward Thompson had a perfect right to divert the water through this race, and he did so divert it at and before the time of making said conveyance. This right passed to his grantee, William, and subsequently to the defendant; there being, as before said, no restriction in the deed. And the defendant’s use of the water, to which he has thus acquired an unrestricted .right, can not be defeated by the plaintiff. 20 Ohio Rep. 401; White v. Bass, English Court of Ex. 1862, reported in Boston Law Rep., Jan., 1868, page 165.
    It will be observed that the defendant has not raised his dam, or enlarged his race. Both are in precisely the same state as they were when conveyed by Edward Thompson to William Thompson. Whether the defendant could lawfully raise his dam, or enlarge his race, so as to divert more water, than they were capable of diverting when Edward conveyed to William, need not be now considered, for no such thing has been done.
    It is sufficient for present purposes, that it is impossible to construe the deed from Edward to William, as not conferring a right to the mill and its then existing appurtenances. And those appurtenances were, the dam and race and free flow of the water through the race to the mill, to the extent of the capacity of the dam and race — there Being no restriction in the deed.
   Brinkerhoee, J.

The waters of White Oak creek are so winding and serpentine in their course as to form, in the neighborhood of these mills, what, for the sake of convenience, may be called a peninsula. The upper mill is above the peninsula; the middle mill, belonging to the plaintiff below, is on the peninsula ; and the lower mill, belonging to the defendant below, is below the peninsula. A race-way, or tunnel, has been made from the dam of the lower mill, across the peninsula, so as to tap the creek above the dam of the middle mill, and partially to divert from it the water which would otherwise flow to it. And this is the injury complained of in the action below.

At the time this race-way was dug and put to use, Edward Thompson owned the upper and lower mills only; but, as he subsequently acquired the title to all three of the mills, and to all the lands affected by them and their appurtenances; and inasmuch as he, during the time he owned all the mills, left the race-way as an appurtenance in fact to the lower mill, and at the expense of the middle mill, the case is the sam in principle, it seems to me, as if he had dug the race-way and put it to use at a time when he was the owner of all the mills.

If, at the time he was the owner of all the mills, he had filled up this race, or had in any way stopped the flow of water through it, and had thus discontinued its use, the case-would have been very different from what it now is. In that case, he would have clearly indicated his intention to sever,, and would, as a matter of fact, have severed the connection between the race and the lower mill, and the race would have-ceased to exist as an appurtenance to the lower mill, both as a matter of fact and in law.

But, being at the same time the absolute proprietor of all the mills, and, as such, having the right to do with them what he pleased, he continued the existence and the use of the race as an actual appurtenance to the lower mill, until, by simultaneous conveyances, he granted the mills with their appurtenances severally to his three sons, as before stated, all the-conveyances being otherwise silent in respect to this race.

On this state of facts, it seems to us clear, on every principle of reason and common sense, that he must have intended to grant to his sons respectively, and they must have expected to receive, each his mill with its appurtenances as it actually existed in fact and in use at the time of the conveyances — no more, and no less; and this obvious intention on the part of the grantor, and reasonable expectation on the part of the grantees, furnish the exact measure of the rights of the grantees-inter se, and of all parties holding under them respectively. This seems to us to be the reason of the case, and the authorities bearing upon the question are uniformly accordant to the same effect. Angelí on Water Courses, secs. 191,192, and cases there cited.

As early as the reign of James I, in Nicholas v. Chamberlain, Cro. Jac. 121, it was ruled by “ all the court ” of kings-bench, that “ if a lessee for years of a house and land erect a conduit upon the land, and, after the term determines, the lessor occupies them together for a time, and afterward sells the house with the appurtenances to one, and the land to another,, the vendee shall have the conduit and the pipes, and liberty to amend them.” We are hot aware that the ruling in Nicholas v. Chamberlain has ever been seriously questioned; and it fully justifies the ruling of the court below in this case.

The case of Kilgour v. Ashcom, 5 Har. & J. 82, is very ■closely analogous to the one before us; the only difference being this, that there the parties simultaneously inherited from a common ancestor, and here they took title under simultaneous conveyances from a common grantor. In that case, “ A. died intestate, siezed of a tract of land on which there was a gristmill then in operation. On a division of the land under the act to direct descents, amongst his heirs, the mill was on the part allotted to B., the dam of which covered a portion of the part allotted to C.” It was held — “ that B. had a right to use the mill and dam in the same way, and to the same extent, as they had been used by A. in his life-time.”

The questions presented in this case, and kindred questions, ■have been very fully considered by this court in the case of Morgan v. Mason, 20 Ohio Rep. 401; and it was decided in accordance with the opinions we have here expressed.

We think that the law of the case was correctly given to the jury by the court below and that the judgment ought to be affirmed.

Peck, C.J., and Gholson, Scott and Ranney, JJ., concurred.  