
    * Mercy S. Hatch versus Josiah Dwight and Joseph Burnell.
    The owner of a mill privilege, on which a mill has formerly stood, but on which no mill is actually standing, is entitled to an action against one, who, by erecting a dam below, renders the site useless for the purpose of erecting a mill; unless the owner has abandoned it evidently with an intent to leave it unoccupied.
    The right to such action, by a mortgagee, commences at the time he takes actual possession of the mortgaged premises ; and the proper measure of his damages is the interest on the value of the site, or mill privilege.
    This was an action of trespass on the case for a nuisance. The plaintiff alleges that she was seised of a corn-mill, called the upper mills, on Mill River, so called, in Northampton; and that the defendants erected, continued, and kept up a dam below, and caused the water to flow back upon the plaintiff’s mill and mill site; whereby the same became useless. The defendants severally pleaded the general issue, and those issues were joined.
    At the trial, which was had here before Putnam, J., May term,' 1820, the plaintiff produced a deed of William Edwards, dated June 16th, 1807, conveying to her “a certain mill seat and mill, situate in Northampton, on Mill River, so called, known by the name of the upper mills, with all and singular the appurtenances belonging to the same,” in mortgage to secure the payment of 1000 dollars, which he had borrowed of her. The plaintiff recovered judgment upon that mortgage in May, 1817, and took actual possession of the mortgaged premises on the 29th of the following August. This mill site, or privilege, extended on the west side of the river, from a place a little above the mill, down to the bridge, which is below the new dam ; but the land appurtenant to the mill site, or privilege, was not particularly described by metes and bounds, bu only as in the mortgage aforesaid.
    
      It was proved that, in the year 1807, the defendant Burnell built the new dam about five rods below the plaintiff’s mill site, and thereby caused the water to flow back, so as to render the plaintiff’s mill site wholly useless. Edwards purchased the upper mills of Aaron Coole, Abner Hunt, and Benjamin Ciarle, in the year 1803 or 1804, for 1350 dollars. The grist-mill was then very old and much decayed, and the saw-mill (in the language of a * witness) had then entirely done. After the execu- [ * 290 ] tian of the mortgage to the plaintiff, viz., on the 17th of October, 1807, Edwards conveyed to the defendant Burnell two third parts of the upper mills situate in Northampton, with the privileges, as formerly owned by the said Coole, Hunt, and Ciarle, the other third being owned by Edwards; also two thirds of a piece of land in common on the west side of Mill River, near said mills, containing in the whole about twenty acres, which Edwards purchased of the said Ciarle; also two thirds of about three fourths of an acre of land on the east side of the river, also purchased of Ciarle; also two thirds of one acre adjoining the easterly end of the dam of the present mill, purchased by Edwards of the said Coole; the whole of the above-described premises being conveyed, subject, however, to the said mortgage to the plaintiff, which Edwards covenanted to discharge in one year.
    At the time of this conveyance, the old mills, which were on the west side of the river, had been taken down, and the mill mentioned in Edwards’s deed to Burnell was placed on the east side of the river, upon the land which Edwards purchased of Coole; and the dam, of which the plaintiff complains as a nuisance, is that which is mentioned in that deed to Burnell.
    
    It was in evidence that Edwards, wanting a small piece of land on the west side of the river, included in his mortgage to the plaintiff, whereon he might build a hide-mill and some lime-vats, obtained from her, for the consideration of five dollars, a release of a small parcel of land thus described—“ Beginning at the west end of the dam on Mill River at the upper mills, so called, and running up said river two rods, thence westwardly, &c. &c., and thence to the bank of the river,” for those purposes, dated the 1st of September, 1810; having previously conveyed the same land to the Hampshire Leather Manufacturing Company, by a deed dated the 24th of the preceding August. On the 30th of August, 1815, Edwards conveyed * to the defendant Dwight the remaining [ * 291 ] third of the upper mills and the lands, of which he had before conveyed the two thirds to Burnell, describing them as in that deed, recognizing the encumbrance of the mortgage thereof to the plaintiff, and excepting out of the granted premises the small piece of land above mentioned, which the plaintiff had released to him. This was the first time that the defendant Dwight had an) concern in this matter.
    It was discovered that the land on which the new mill had been built, was not included in the description of the premises mortgaged by Edwards to the plaintiff; and that she had no land conveyed to ier near the mills on the east side of the river. But she had a right to rest the east end of the dam upon the land on that side; and her land on the west side extended much below the new mill-dam.
    It was in evidence for the defendants, that the place where the old dam stood, was not so convenient a site as that where the new one had been built; also, that the town of Northampton have a claim upon the owner of the upper mills, to keep a corn-mill there for the use of the inhabitants; and that another mill has been built below those mills, where the inhabitants can and do more conveniently procure their corn to be ground. And it was insisted that the plaintiff had sustained no damage, but had, in [ * 292 ] * truth, been prevented from wasting her property in building upon the mill site; and especially as there was no evidence that she would have occupied it, or could have disposed of it.
    It was proved that the value of the property, when Edwards purchased it, consisted mainly in the water-course or mill site; the buildings being at that time worth little or nothing. One witness testified that the upper mill privilege would be worth 500 dollars, if there were no obstruction from the mill below. Another witness thought it worth nothing, by reason of the inconveniences of building at the place, but that the privilege of the lower dam, if free from any claim of the plaintiff, would be worth 1000 dollars; and it was proved that this privilege could not be enjoyed without entirely destroying that of the plaintiff.
    
      
      
    
    
      A. The small piece of land released by the plaintiff to Edwards.
    
      B. The new mill erected by the defendant Burnell.
    
    
      It was contended by the plaintiff that the defendants, by continuing their dam, did, in fact, take possession of the plaintiff’s mill site, and ought, therefore, to pay a yearly sum in damages, equal, at least, to the interest of the value of her property.
    The defendants contended that, it being proved that, at the time of the plaintiff’s deed of release to Edwards, he and Burnell had a grist-mill on the east side of the river, connected with a mill-dam; and that Edwards had a hide-mill on the west end of the dam ; the release would convey the right to maintain the dam, and also convey the privilege of the water, so far eastward as she owned the same against the land particularly described in the same deed; and that in consequence of having a right to erect or maintain and keep the said dam, the plaintiff could sustain no damage therefrom; although all parties supposed that she owned the land whereon the mill stood; and that if the plaintiff was entitled to any damages, she could not recover for any thing done before she took actual possession, which was only one year prior to the commencement of this action.
    * The plaintiff contended that she had a right to recov- [ * 293 ] er from the time that Dwight became interested with Burnell.
    
    The judge was of opinion that the plaintiff could recover only from the time she had actual possession, but directed the jury to find the damages from the time Dwight became interested ; which was to be added to the verdict, if such should be the opinion of the Court. The judge also instructed the jury, that the deed of release from the plaintiff to Edwards, of the small piece of land for the hide-mill, did not in law operate as a release of her mill site, or bar her claim for damages for the injury complained of in this action.
    All the evidence touching the question of damages was submitted to the jury, and they returned a verdict for the plaintiff for thirty-six dollars for one year, being from the time that she took actual possession ; and they expressed an opinion that, if the plaintiff was by law entitled to recover damages from the time that Dwight became interested, or before, that the same should be after the rate of thirty-six dollars a year; and the judge was satisfied with the verdict.
    The defendants moved for a new trial, because the damages were excessive; because no action could be maintained upon the evidence in the case, and because of the misdirection of the judge, as to the effect of the deed of release ; and the whole Court were to do what should appear right in the premises.
    
      Bliss, for the defendants.
    The action is entirely novel in priiteipie. It is for flowing an ancient site for a mill, on which no mill is standing. It is not within the cases of quia timet, but seems like the case of the owner of land, convenient for the site of a house, and on which, perhaps, he may contemplate erecting one, bringing an action against the owner of land adjoining, for building a house, whereby the plaintiff’s light in his contemplated house [ * 294 ] will be obstructed. Certainly no such action could * be maintained. To support this species of action, the injury must affect something in existence, or there can be no rule for measuring the damages.
    But if the common law gives, an action for flowing land, the right to it is taken away by our statute of 1795, c. 74, as was settled in the case of Stowell vs. Flagg 
      .
    An attention to the several deeds given in evidence, and particularly to their dates, will show that the defendants were strictly justifiable in all they have done. In August, 1810, Edwards conveys a part of the land mortgaged, with a mill and other works thereon, to the Leather Manufacturing Company; and the next month the plaintiff releases her right to the same premises to Edwards. It is apparent, then, that she knew that there was at that time a mill and a dam ; and by her deed she releases all claim to damages on that account, and all her rights to the middle of the stream . And this release enured to the use of the grantees of Edwards 
      .
    The direction of the judge was incorrect, then, respecting the effect of the plaintiff’s release, viz., that it was no bar to the action. It ought to have been referred wholly to the jury, as a matter of fact, for them to decide whether it did authorize the erection of a mill-dam or not, or whether it included in its description the mill and dam. The smallness of the consideration for the release ought to have no weight in deciding its construction. It was probably owing to the fact that the mill, which had been mortgaged to her, was prostrated.
    The verdict is wrong on the evidence. The damages are excessive, and are not justified, even on the only ground upon which the jury could have assessed them; viz., that the defendants had no title to the land. Thirty-six dollars a year is most enormous for damage to land literally worth nothing. ,
    
      L. Strong, for the plaintiff, contended that the action might well be maintained upon the facts in evidence. Had an existing [ * 295 ] mill been obstructed in its operations by the * defendant’s dam, no doubt could have been raised; and there seems to be as little when, in consequence of the nuisance complained of, the plaintiff has been prevented from enjoying her property in the manner in which she, and those whose estate she had, had been accustomed to enjoy it. Suppose the plaintiff’s mill had been carried away by a tempest, no one could doubt that she was entitled to rebuild it, and that an action might be maintained against the defendants, had they, by the erection of a dam, deprived her of the enjoyment of this right.
    Nor is the plaintiff, in any degree, barred of her right of action by her release to Edwards. The land is described in that instrument as beginning at the end of the dam, thence running up the river, and by several courses to the bank of the river, &c. And, although the principle that the proprietor of land upon a freshwater river is usually entitled to hold to the thread of the river, may be correct, the question arising in this case is, nevertheless, a question of construction ; since one owning land upon a river not navigable, may convey the upland without the stream, or the stream without the upland .
    The true rule will probably be found to be this. If, upon a reasonable construction of the deed, it appears that the grantor intended to convey an interest in the stream, or has used doubtful expressions, thus leaving it uncertain what his intention was, the deed will be construed as conveying all the grantor’s interest, even to the thread of the river. Thus, if land be described as lying “ on the west side of the river,” or as bounded “ by a river,” the description is indefinite; and, therefore, the Court said, “ land granted as bounded by a river, extends to the thread of the river, unless, from prior grants on the other side of the river, such a construction is negatived” . So in the case of monuments, where they seem intended to describe the lines from the river, rather than those upon it; the width, rather than the d.epth of the grant . So where it appears from other parts of the deed, that the monuments * were not intended to exclude the grantee from a part [ * 296 ] of the stream . But if the description in the deed be definite, and the extent of the grant may be distinctly ascertained by the language used, the law will not by construction extend the conveyance beyond its expressed intent; since this were to make a deed for the party, which he has not thought proper to make for himself. Thus a grant of land, bounded by a way, which way adjoins the sea-shore, does not pass the flats on the other side of the way . So a conveyance of land described as running to the shore, and thence by the shore, was held not to include the shore, or the flats between high and low water mark .
    But if the release had bounded Edwards by the river, and thus conveyed the land to the edge of the river, the plaintiff would not thereby have lost her right of action; for the dam is mentioned merely as matter of description; and the plaintiff being out of possession as well at the time the dam was erected, as from thenceforward to the execution of the release, the law will presume, what the facts in the case abundantly establish, that she was ignorant of the injury which her property was continually sustaining from the existence of the dam .
    
      
       11 Mass. Rep. 364.—12 Mass. Rep. 311. Jewell vs. Gardiner
      
    
    
      
       7 Mass. Rep. 497, King vs. King.
      
    
    
      
       9 Mas Rep. 34.—3 Mass. Rep. 352
    
    
      
       12 Mod. 510, Rex vs. Wharton,
      
    
    
      
       14 Mass. Rep. 151, Lunt vs. Holland
      
    
    
      
       7 Mass. Rep. 496, King vs. King.
      
    
    
      
       14 Mass. Rep. 151.
    
    
      
       10 Mass. Rep. 146, Codman vs. Hamilton.
      
    
    
      
       6 Mass. Rep. 435, Storer vs. Freeman.
      
    
    
      
      
        Cro. Jac. 121, Nicholas vs. Chamberlain.
      
    
   Parker, C. J.,

delivered the opinion of the Court.

This case is predicated upon the supposition, that the owner ol a mill privilege, which is destroyed or impaired in value by the building of a dam on another privilege, above or below on the same stream, is entitled to damages in proportion to the injury sustained. And the principle does not seem to be denied, where the injury, by drawing off, stopping or flowing back the water, obstructs the operation of a mill already existing. But it is supposed by the counsel for the defendants, that where the privilege is unoccupied by a mill, the principle cannot be applied .

If the privilege in question had never been occupied, the argument would be well founded; for the owner of a mill site, who first occupies it by erecting a dam and [ * 297 ] mill, * will have a right to water sufficient to work his wheels, if his privilege will afford it, notwithstanding he may, by his occupation, render useless the privilege of any one above or below him upon the same stream. So, if a site once occupied had been abandoned by the owner, evidently with an intent to leave it unoccupied, it would be unreasonable that others, owning above or below, should be prevented from making a profita ble use of their sites, from fear of being exposed to an action for damages by their neighbor. Questions of this kind, however, are proper for the consideration of a jury; and unless they find that a privilege, which has been obstructed, has been abandoned, the owner of such privilege will be entitled to recover suitable damages.

In the case before us no such fact is found. The plaintiff’s mill had become ruinous before she acquired a title to it, and very soon after the conveyance to her, according to the evidence: to have rebuilt it would have been fruitless, because the dam was then erected below. Besides, she only held it as security for a debt, before the year 1817, and could have no interest in making expenditures upon it. As soon as she entered to foreclose, she had a right to the full use and value of the privilege, as it was when her title commenced. To say that she cannot be indemnified for the diminished value of the mill, because no mill is actually standing the use of which may be interrupted, would be to oblige her to incur all the expense of building, at the hazard of consequences, and it may be, of the whole value of the buildings, as well as of the privilege.

But another objection to the verdict is, that by the release made by the plaintiff to Edwards of a small piece of land on the west side of the stream adjoining the dam built on the privilege owned by the defendants, a right to stop the water passed to the grantee; or that the plaintiff is estopped to claim any right to the stream in front of the land released; so that she is barred of her right to claim damages for any injury to the upper privilege, which * might happen in consequence of the making or con- [ * 298 1 tinuing of the dam below.

If such were the intent of the parties to that instrument, apparent from the deed, it would certainly put an end to the plaintiff’s claim. But we think the deed not capable of such a construction. The land released is limited to the bank of the stream, which necessarily excludes the stream itself; and there are no general words by which a right to keep up a dam there, can be said to be conveyed. It does not appear by any expressions in the deed, that either of the parties to it had any view to the use of a stream as a mill privilege; and it is not to be inferred, without very strong grounds for the inference, that the plaintiff, for a nominal consideration, had surrendered every thing valuable in the property, for which she had given a large and adequate consideration. If sucb had been the legal effect of her deed of release, her sex, and probable incapacity of business, would afford room for suspicion that an unfair advantage had been taken of her ignorance, by one who better knew the force and effect of language in instruments of conveyance. But no such unfairness can Be imputed in the present case.

The purpose for which the release was obtained, does not appeal in such manner that we can take notice of it. But there is no more reason to suppose it was wanted for the purpose of enabling the releasee to keep up the dam free from any claim of damages, than that the land was intended to be used for some other purpose wholly unconnected with the dam. Indeed the operation of the release, under the actual circumstances, is no more than if the land described in it had been excepted from the mortgage; in which case t would not be pretended, that the mortgagee intended to waive my rights she might have in the property conveyed by the deed. Without doubt, by our law, the owner of land extending [ * 299 ] to the bank of a river will own to the middle of the * river, if it be not navigable, and so public property. But the owner may sell the land, without the privilege of the stream; as he will, if he bounds his grant by the bank. This principle is well explained in the case of Storer vs. Freeman, cited in the argument. The description of the land granted in the release to Edwards very clearly excludes any part of the stream ; and, as before observed, there are no general words of a more extensive signification.

As to the damages, we think it was right to limit the plaintiff to the period of her actual possession. Before that, it was uncertain whether she would claim to hold the land and other privileges, or rely upon her personal security for her debt. Although a mortgagee may enter at any time, yet, until he enters, the land must be considered as belonging to the mortgagor; who can maintain trespass for any injury to the freehold, against any but the mortgagee. There is no doubt that Edwards could have maintained this action, unless barred by some act of his, other than his mortgage to the plaintiff. The rule adopted by the jury was a reasonable one. Having ascertained the value of the privilege, if unobstructed, they gave the interest of that sum, from the time when the plaintiff’s right of action accrued.

Judgment on the verdict 
      
       [In Bigelow vs. Newell, 10 Pick. 348, it was held that where the proprietor of land, through which a stream of water flows, has built or is building a mill thereon, a proprietor of land below cannot, without a right, by grant or 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 damage, pursuant to the statute, u hich does not apply to such a case. See Revised Statutes, c. 116, § 2.—Ed.]
     