
    
      David Leggett vs. Henry Kerton.
    
    Defendant purchased land which was subject to plaintiff’s right to a grist mill, which had been erected previous to defendant’s purchase. Defendant built another mill, which reduced the water so low in the pond that plaintiff’s mill frequently could not grind. Held, that plaintiff’s right to the use of the water was superior to that of the defendant, and that defendant was liable to the plaintiff in an action on the case for having diverted the water from his mill.
    
      Before Butler, J. at Marion, October, 1845.
    This was an action on the case against the defendant, for interrupting the enjoyment of plaintiff’s grist mill, situate on Reedy creek. The mill had been erected by Jesse Leggett in his life time — whilst he was the owner of one moiety of the laird on which it was situated. Jesse sold out his half of the land to his co-tenant, and subsequently bought it back, with a reservation of an exclusive right to two frames or floodgates near said mill. At the death of Jesse Leggett, sen. he and David Gibson were tenants in common of the mill pond and saw mill on the left bank of the stream, and were also tenants in common of about 1500 acres of land, adjacent to the mills. There was a Yerbal understanding as to the division of these lands, but no legal partition — so that, at the death of Jesse Leggett, he. and David Gibson were legally seized as tenants in common of the entire premises connected with the mills, together with the mills themselves. In 1828, proceedings were instituted for the partition of Jesse Leggett’s estate, and the grist mill was assigned to his widow, at the price of $1,500 — Gibson laying no claim to it. Subsequently the high land, to high water mark in the pond, was divided between David Gibson and Jesse Leggett, jr. in accordance with the understanding that had obtained in the life time of Jesse Leggett, sen. The land covered by the pond was not at that time divided. But subsequently both Jesse Leggett, jr. and David Gibson, conveyed their interest in the pond, and their high land; and through mesne conveyances, the entire title to the same, together with the saw mill, was concentrated in the plaintiff, with an express reservation, in all the conveyances, that a right of a part was secured to Martha the widow of Jesse Leggett, sen. and her assignees. Martha Leggett, in sold to her son,
    David Leggett, the mill with this right thus reserved by grant, in consideration of $800. He continued, under this conveyance, to enjoy the use of the mill without interruption until about 3 years before the trial, when the defendant erected a mill at the extreme end of the dam, on the right bank of the creek, by cutting away part of the dam, and digging a race to the mill. An action of trespass was commenced for this trespass, as it was regarded, but the plaintiff submitted to a non-suit, and commenced this action, to support which he proved that for the last two years the water in the creek had been low, and that it frequently happened that he could not grind when the defendant would start his mill. In other words, there was not water for both, at the sanie time — the consequence of which was that plaintiff’s mill could not go over half its time — and which, according to the testimony of several witnesses, reduced its profits fully fifty per cent.
    
      Under his Honor’s construction of the deeds and the rights of the parties to them, he was of opinion that the defendant, as the owner of the soil, had a right to the use of the water in the pond, for an additional mill — but that he could not use it so as to interfere with the plaintiff’s enjoyment of the water that might be necessary for his mill.
    Yerdict for plaintiff for $20.
    The defendant appealed.
    
      Dargan, for the motion.
    
      Harllee, contra.
   Curia, per Butler, J.

In cases like the present, daily becoming more important in this State, it is prudent to restrict the judgment of the court to ' the only question involved.

The defendant acquired his title through several mesne conveyances, all of which in express terms reserved to the plaintiff’s vendor the right of a grist mill. The first conveyance which notices and secures this right is a deed from Wilkinson to Jesse Leggett, sen. in which the right of a grist mill, then in operation, was secured with all its appurtenances. The subsequent conveyances acknowledge the same right, though not exactly in the same terms, but made in reference to the same mill; the dam, sluices, &c. being at the time used for its operation.

Judge Story, in an elaborate judgment in the case of Whitney vs. Olney, 3 Mason, 280, held, that the devise of a mill, with the appurtenances, conveyed not the buildings merely, but the land under and adjoining-, which was necessary for the mill, and actually used with it, and said that he laid no stress on the word appurtenances, but that the land under the mill, and adjacent thereto, passed by the force of the word mill. He continued to say, that a mill does not mean merely the building in which the business is carried on, but includes the site, the dam, and other things annexed to the freehold necessary for its beneficial enjoyment. These are all involved in the title of a mill; and presuppose that water, the great and essential physical agent for the actual operation of a mill, adheres to and is inseparable from such title. It is the primum mobile of the thing to be enjoyed, and cannot be separated from it, without destroying the enjoyment of the thing itself. The whole is included in the words — the enjoyment of a perfect right. The defendant, in the case before the court, when he diverted the water from plaintiff’s mill, at a time when it was necessary for its grinding, interfered with and disturbed a right which he had acknowledged and reserved by the terms of the conveyance under which he held his own land. He holds his own land with a •qualified tenure, and can only use the water in the millpond for additional mills which he may have erected after his purchase, on the condition that he does not hurt or injure the full and perfect use of plaintiff’s easement. So long as there is water enough for both, he may let his mill run; but when, by diverting water to his own he stops that of the plaintiff, he acts at his own peril and must abide the consequences. He must take care to use his own rights in subservience to those of another, after he has acknowledged those rights in such terms as amounts to a conveyance of them.

The verdict has been found upon ample evidence of its justice.

Motion refused.

Richardson, O’Neall, Evans, Wardlaw and Frost, JJ. concurred.  