
    Isaac Bigelow et al. versus Josiah Newell.
    Where an action and all matters in dispute between the parties, were submitted to referees, with authority to settle the rights of the parties and to make such special award as the nature of the case might in their opinion require, “ always having regard to the legal rights of the parties,” it was held that this clause was intended merely to prescribe a rule as to the principles upon which the refereeAwere to decide, and was not intended to restrain them from determining questions of law as well as questions of fact; and consequently that their award was conclusive as well of the law as the fact.
    Where the proprietor of land through which a stream of water flows, has actually built or is building a mill thereon, a proprietor of land below cannot, without a right acquired by grant, prescription or actual use, erect a new dam or raise an old one, so as to destroy the upper mill privilege, simply under a liability to pay damages, pursuant to the statutes for the regulation of mills, nor do those statutes apply to such a case.
    The plaintiffs, as owners of mills situated on Charles river, in Natick, brought an action on the case against the defendant, as owner of mills situated on the same river, in Dover, about six or seven miles below the plaintiffs’ mills. The writ was dated March 26th, 1829.
    The declaration contained two distinct counts ; one, for damage done to the plaintiffs’ ancient mills ; the other, for damage done to a mill site and privilege, upon which the plaintiffs had begun to erect a dam and cut a canal, and taken other measures to erect and complete a mill.
    On the return of the writ, the parties agreed to refer the action and all matters in dispute between them, to the determination of Samuel P. P. Fay, William Baylies, and James F. Baldwin, esquires. It is agreed, in the submission, that the referees shall determine what sum, if any, the plaintiffs shall recover as their damages in the suit, and in what way the defendant has a right to and may have and keep his dam below the plaintiffs’ mills or mill sites, as it respects the place, height and construction of such dam, and the places, width, height, magnitude, construction and number of the waste ways and sluices thereof, and every other thing that may in any way affect the raising or Bowing of the waters above such dam, without violating the legal rights of the plaintiffs ; and the referees shall order and direct the way and manner in which the same shall from time to time and at any and all times hereafter be constructed and kept, accordingly, and shall in all other respects determine and settle the rights of the parties in the premises, and make such special award, and order such specific performance thereof, as the nature of the case may in their opinion require, always having regard to the legal rights of the parties. And shall make and fix all such permanent marks and monuments in or near the river or dam, to mark and limit the rights of the parties as it regards the height of the dam and the water, and to prevent future disputes and litigation, as shall be deemed expedient, and shall designate what sluiceways and waste gates the defendant shall have, keep, and provide, and how he shall manage the same to let'off the superabundant water, and to prevent its rising above such marks or monuments as they may designate.
    The referees made their report, in which they award, among other things, that the defendant’s right of flowing at the place where his present dam is situated, and by means thereof, as acquired by actual use for twenty years previous to June 1828, does not exceed one foot and twenty-nine hundredths of a foot above the sill in that dam, on which his three feet flash gates now’ rest; that since June 1828, he has raised the water of the river by means of his present dam, higher than he had a right to do by his previous use, so as to throw back the water on the plaintiffs’ land, and injuriously to affect the working of their mills ; that his dam and gates ought to be so reduced and regulated, as that the water in its usual and ordinary state or flow, should not be raised immediately above the dam, to a greater height than the point above mentioned.
    On motion of the defendant, in the Court of Common Pleas, this report was recommitted to the referees, for the purpose of their reporting to the court their decision upon all questions of law which either party might request, and so much of the evidence as was necessary to present the questions fairly ; and they were empowered to go into the reconsideration of the case generally, or in part, as to law and fact, so far as they might think expedient.
    The referees made a second report, confirming their former one, and setting out the grounds of their decision. They state, that the plaintiffs own several mills on Charles river, and about seven miles above the mills of the defendant. The plaintiffs a^so own the Lnd on the right side of the river, and to the thread of it, for about one hundred rods below their mills and dam. Within this distance there is a fall in the river, and another mill or mills might be placed on their land on the bank near the lower boundary, to be driven by water brought by a canal from their present pond ; by which means they would gain an additional head and fall; and this privilege enhances the value of their property. On the 28th of May, 1828, the plaintiffs having had an application for the purchase of their mills and privileges, caused a survey to be taken of the river from their dam to the defendant’s dam, and they informed him of their intention to occupy the lower privilege on their land, and that they had on the preceding day begun to dig a canal for a mill to be erected near the lower boundary of their land, in order to use the fall between that point and their dam. In pursuance of that intention, the plaintiffs had begun to dig the canal, and in the course of a few days they removed a considerable quantity of earth in the progress of that work; and about the same time they dug a trench at the margin of the river, at the lower end of the proposed canal, and placed a mud sill therein, as the first step towards the erection of a mill. Within a few days, and early in June 1828, the defendant, who was about erecting a new dam on the site of his existing one, raised a temporary dam above, which flowed the water upon the plaintiffs’ land, so as to interrupt their work. In the course of the summer of 1828, he erected a new and permanent dam, which is that complained of, much higher than his former one, by which, from about the 20th of October, 1828, to the date of the plaintiffs’ writ, the water has been raised higher by a foot and seventy-one hundreths of a foot, than it had been usually raised, at any former period, either by the dam or dams which for the last thirty years have stood in the place cf the present one, or by the ancient dam, called Fisher’s dam, owned by the defendant and his predecessors, which stood about twenty rods above, and which was removed upon the erection of the one on the present site. This additional raising of the water was not indispensably necessary to driving the defendant’s mills, which in number and description were the same as had been there for the last twenty years or more, although such additional head would increase their power ; but it throws back the water upon the aprons of the plaintiffs’ mill wheels, and fills the channel of the river immediately below, so as injuriously to affect thei'r operation. Perhaps the greater part of this additional flow might take place without actually injuring the plaintiffs’ mills, but no part of it can take place without flowing their land and depriving them of the benefit of the fall below their mills and within their own land, either for the purpose of more readily discharging the water from their mill wheels, or of erecting a new mill below. The plaintiffs claim damages for any flowing upon their lands or mills by means of the defendant’s dam, not justified by at least twenty years’ use previous to June 1828. The defendant claims to have ae- ■ quired a right, by a use of twenty years or more, immediately previous to June 1828, to raise the water as high as he has in fact raised it since that period by his present dam. He also claims a right to raise it as high as the owners of Fisher’s dam had acquired a right by that dam to raise it, although he may never have raised the water so high by the lower one which was substituted for it. And he further claims, that if he had not by either of those dams acquired a right to raise it as high as he has done since ,Tur\e 1828, he has a right, under the acts for the support and regulation of mills, so far as regards the fall below the plaintiffs’ mills and overflowing their land, to raise and continue it at that height, which is one foot and seventy-one hundredths of a foot higher than that fixed by the award of the referees, subject to damages, as provided in those acts ; and in that case the plaintiffs’ remedy, if any, was by complaint under the statute, and not by action at common law, and the referees, under the submission, could not award respecting it ¿ but if the referees ought to award in regard to it, they should give damages, and not restrain the defendant from flowing.
    Upon these facts and claims the referees determined, that the defendant had raised the water higher than he was authorized to do by his use previous to June 1828, and that his flowing should be reduced and fixed as in the award, at the point to which he had acquired a right to flow by twenty years’ previous use. This reduction was greater than what was necessary t0 rel’eve th® plaintiffs’ mills from back water, but not greater than was necessary to relieve the privilege below, and take off the water, so as to give the plaintiffs the benefit of the fall below', within their land. The referees were also of opinion, that the defendant can claim no right under the old dam, that having been abandoned ; still they were not satisfied from any evidence in the case, that the customary flowing under that dam was higher than the point fixed by the award. The referees were of opinion, that the terms of .the submission authorized, and that the justice of the case required, .that their . award should be founded upon the rights acquired by the defendant, and those under whom he claims, by tw'enty years’ previous use. And that they were'not obliged, having regard to the rights of the parties, to determine in favor of the right claimed by the defendant under the statutes made for the regulation of mills, and to authorize by their award his raising the water so as to fill the channel of the river against the plaintiffs’ land, extinguish the fall therein, or destroy a privilege which they had begun to occupy as such, although no mill was in fact erected.
    Judgment was rendered in the Common Pleas upon this report, to which judgment the defendant excepted : —
    1. Because the referees determined, that the defendant was limited, as to the height of his dam,-by the use of himself and his predecessors, for twenty years previous to 1828.
    2. Because they determined, that the defendant had no legal right, by his dam, to throw back the water towards the plaintiffs’ mills in such a manner as to destroy a fall or declivity in the water of the river, at a place where the plaintiffs own the land on one side only of the river ; although by such throwing back the water no other damage was done to the plaintiffs.
    3. Because they determined, that the defendant has no legal right to raise his dam to any height which will not throw back the water in such a manner as injuriously to affect or impede the existing mills of the plaintiffs.
    4. Because they determined, that the plaintiffs have a right to reduce or cut down, and that the referees have a legal right to order a reduction or cutting down of the defendant’s dam, although it does not or may not raise the water so as to obstruct or retard the wheels of the plaintiffs’ mills, but only so ..s to overcome the fall in the bed of the river opposite to the plaintiffs’ land, where they own only on one side of the river.
    
      Jan. 14Ih 1831, in Suffolk.
    
    
      James Richardson and H. H. Fuller supported the exceptions.
    Where it is clearly the intent of parties to submit to referees the decision of questions of law, their award upon them is conclusive. In the present submission, however, a right is reserved to bring questions of law before this Court. The referees were to determine the rights of the parties according to the rules of law, and if the award shows they have mistaken the law, as the defendant contends it does, the Court will correct the error. Jones v. Boston Mill Corp. 6 Pick. 148, 156.
    By the common law, the defendant had a right to raise tue water and appropriate it to the use of his mill, although he might thereby overflow an unoccupied water privilege belonging to the plaintiffs. So far as his dam was of a height to interfere with their mills, but no further, they might claim to have it reduced. 2 Bl. Comm. 14, 402, 403 ; Hatch v. Dwight, 17 Mass. R. 289; Angell on Water-Courses, 39, 68, 69, 70 ; Saunders v. Newman, 1 Barn. & Ald. 258 ; 3 Kent’s Comm. 358, and note ; Platt v. Johnson, 15 Johns. R. 213.
    But if the common law is doubtful, the statute of 1795, c. 74, authorizes the defendant to raise the water as high as he may think proper, provided be does not interfere with an existing mill, and he is only subject to damages for overflowing the plaintiffs’ land, and perhaps (by virtue of St. 1824, c. 153, § 3,) for obliterating their unoccupied declivity in the river.
    The plaintiffs did not, by beginning to cut a canal and laying a mud sill, acquire the same rights as if they had erected a mill. They had not begun to use the water, and there is no evidence they intended to finish a mill. If the owner of a water privilege may, merely by taking such preliminary steps and saying he intends to erect a mill, prevent another person from erecting one on the stream below, the policy of the statutes for the regulation of mills will be defeated.
    
      
      Rand and T. Bigelow, for the plaintiffs,
    to show that the award was conclusive upon the parties, cited Butler v Kynnersley, 2 Bligh’s New Rep. 375, 391 ; Coffin v. Cottle, 4 Pick. 454 ; Morris v. Ross, 2 Hen. & Munf. 408 ; Jones v. Boston Mill Corp. 6 Pick. 156 ; Underhill v. Van Cortlandt, 2 Johns. Ch. R. 361 ; Sharman v. Bell, 5 Maule & Selw. 505 ; Young v. Walter, 9 Ves. 365 ; Ching v. Ching, 6 Ves. 282 ; Campbell v. Twemlow, 1 Price, 88 ; Metcalf v. Ives, West, 87 ; Wood v. Griffith, l Swanst. 55; Goodman v. Sayers, 2 Jac. & Walk. 259 ; Cramp v. Symonds, 7 Moore, 435.
    The opinion of the Court was afterward drawn up by
   Shaw C. J.

The Court are of opinion, that the exceptions cannot be sustained, and that the judgment of the Court of Common Pleas must stand affirmed.

Without dwelling particularly upon the obvious fac t, that this submission embraced many subjects of considerable difficulty, involving questions of law, of science, and of practical experience, and that it was referred to three gentlemen, two of whom are distinguished jurists, and the third, an experienced civil engineer, it may be remarked, that a decision of conti overted questions, made deliberately by judges constituted by the voluntary choice of the parties, is always to be regarded with respect, -and will be supported so far. as it can be done consistently with established rules of law. All presumptions of law are to be taken favorably for the support of an award, and the burden of proof is upon the party who would impeach it, to show the grounds for such impeachment.

The objections of the defendant, in substance resolve themselves into this, that the referees have exceeded their authority because they were bound to decide according to the legal rights of the parties, whereas it is alleged that they have not so decided.

It is unquestionably one of the fundamental rules governing the whole subject of,arbitrament, that the referees must conform to the submission under which they act. Their whole authority is derived from the act of the parties in their submission, and if they do not conform to it they act without authority.

But it is an equally well settled rule, that if parties who select their own judges, do authorize them to consider and decide all questions of law arising on the hearing of the subject matter, or in more general terms, submit their respective rights depending upon considerations of law and fact, and the referees decide accordingly, such award is conclusive as well of the law as the fact; and the court, upon the return of such an award, will not inquire whether the referees thus authorized, have decided correctly upon principles of law, or not. This rule is of course to be tailed with the obvious exception of a case, where the referees have referred questions of law to the court.

But it is contended, that by the true construction of this submission, it was not left to the referees to decide questions of law, because they were only authorized to decide according to the legal rights of the parties, and if they decided otherwise their award was void, and not conformable to their authority.

The Court are of opinion that this conclusion does not follow from.the clause in the submission alluded to. A reference to the general effect and terms and obvious purpose and design of this agreement will show, that the clause in question, “always having regard to the legal rights of the parties,” was intended to prescribe a rule for the government of the referees, as to the principles upon which they were called upon by the parties to decide, not as a limitation of their authority. The latter would in a great measure have defeated the purposes of the reference.

This submission is in the most comprehensive terms, embracing not merely the action and the matters included in it, but “ all matters in dispute ” ; all the respective legal rights of the parties, whether depending upon grant, prescription, usage, or statute ; with full authority to decide upon subjects past, and award damages, and provide for the future use and enjoyment, and to direct a specific performance of all such acts and measures as might be requisite to the future and perpetual use and enjoyment of the legal rights, thus to be ascertained, so as to prevent future disputes and litigation. It appears to us to have been the intention of the parties, in this submission, to place their respective rights and claims fully and completely within the consideration and decision of the referees, whether those rights and claims depended upon controverted questions of fact or law, or both combined, and of course, that it was within the authority of the referees to decide upon all questions of law.

This conclusion we think is strengthened by the form of expression in which reference to the legal rights of the parties is made. And the referees u shall in all other respects determine and settle the rights of the parties in the premises, and make such special award and order such specific performance thereof, as the nature of the case may in their opinion require, always having regard to the legal rights of the parties.” It expressed the understanding of the parties, that the referees were not to go upon mere equitable or hypothetical claims, or arbitrary grounds, but upon the respective, existing, vested, legal rights. But it necessarily included an authority to inquire into and decide what those rights were, and of course to decide the questions of law upon which they depended.

2. But upon the other principal objection relied on by the defendant, we cannot perceive any error in the decision of the referees in point of law, or any ground for setting aside their award.

The defendant insists that the referees had no authority to require his dam to be kept down to the point fixed in their award, because this was not necessary to the working of the plaintiffs’ ancient mills, but only to the preservation of a mill site lower down on the plaintiffs’ land upon which no mill was actually erected, and the existence and preservation of such mill site afforded no legal ground to restrain the defendant from flowing back so as to obliterate such mill site, under the provisions of the statutes in relation to the power of flowing.

But without relying upon the fact, that all their rights and claims, whether by statute or otherwise, were embraced in the submission, the referees proceeded upon the fact, of which it is not denied that they were the exclusive judges, that before the defendant built his temporary dam, or increased the height of his present dam, so as to flow the mill site in question, the plaintiffs had actually begun to cut a canal and lay down a dam, with an intent to proceed and build a mill thereon, and were so proceeding when the defendant placed his temporary dam so as to flow such mill site. They also find, that prior to that time, the defendant had acquired no right by grant, prescription or usage, to raise the water higher than the point fixed by their award ; so that his claim depended solely upon the general right belonging to him in common with all other owners on the river, so to raise and flow.

Without determining whether as a general right, and under what circumstances, limitations and conditions, a lower proprietor on a stream may raise a dam, so as to obliterate and submerge a fall higher up, and thereby prevent the erection of a mill on a suitable site, we think we are well warranted by authorities in determining, that when the upper proprietor has actually built or is building a mill thereon, a lower proprietor cannot, without a right acquired by grant, prescription or actual use, erect a new dam or raise an old one, so as to destroy the upper mill privilege, simply under a liability to pay damages, pursuant to the flowing acts, and that those acts do not reach such a case.

Exceptions overruled. 
      
       See Smith v. Thorndike, 8 Greenleaf, 119; Walker v. Sanborn, 8 Greenleaf, 288; Lutz v. Linthicum, 8 Peters, 165; Hall v. Merriman, 1 Root, 197; Kleine v. Catara, 2 Gallison, 61,70; Smith v. Hall, 2 Fairfield, 295; Adams v. Adams, 8 N. Hamp. R. 83; Greenough v. Holfe, 4 N. Hamp. R. 357.
     
      
       See Revised Stat. c. 116, §1,4; Baird v. Wells, 22 Pick. 312.
     