
    [Merrimack,
    December, 1886.]
    Gage v. Barnes.
    Case, for diverting the water of Pond brook from the plaintiff’s mill, against the provisions of a deed from the defendant to the plaintiff. Report of a referee for the plaintiff.
    
      Albin & Martin, for the plaintiff.
    
      C. P. Sanborn, for the defendant.
   Bingham, J.

The claim of the defendant is, that his deed only gave the right to erect and maintain a dam and penstock on his iand, and that in other respects the right of upper and lower riparian proprietors was created by it. An examination of the deed does not sustain this claim. The deed conveyed the right to take the entire water from the dam, and carry it over the defendant’s land to the mill-site below, to be there used for mill purposes, except a single use in a certain time, which by reference is fully defined in the reserving clause of the deed. The reference in the exception to the language in the reservation, stating when and to what extent the defendant might use the water excepted, made it a part of the exception; and it has the same effect as if it had been stated in full in the part bf the deed describing the right and uses conveyed. Such was the intention of the parties, and the deed conveyed a water-right which the defendant has infringed.

There was no dispute as to the location of the dam described in the deed. The evidence offered, to prove a different location from the one described as having been agreed upon prior to the execution of the deed and not referred to in it, was properly rejected. Wells v. Company, 47 N. H. 236.

Judgment for the plaintiff.

Carpenter, J., did not sit: the others concurred.  