
    *Hollingsworths v. Dunbar.
    Decided Nov. 7th, 1816.
    1. Covenant — Instructions—Sufficiency of Evidence.— Where the extent of the plaintiff’s right under the covenant depends, in part, upon extrinsic testimony, the Court ought not to instruct the Jury, “that if. upon the said evidence, they shall be of opinion that certain facts are established, then the defendant has broken his Covenant as charged in the declaration;” for it is not competent to the Court to say whether such facts are sufficient, or not. to warrant such conclusion, unless the sufficiency thereof had been duly submitted to its Judgment by a demurrer to the evidence. 
    
    2, Same — Evidence—Case at Bpr. — The breach of Covenant charged in the declaration being that, during a specified period of time, the defendant deprived the plaintiff of the water necessary for his mill, by diverting it therefrom, and suffering it to be diverted by others, the plaintiff is not limited in proving acts committed by the defendant or other persons, to the period stated in the declaration; but may prove previous acts, in consequence of which the injury was sustained during that time.
    This was an action of Covenant, brought by the Appellants against the Appellee in the Superior Court of law for Stafford County, upon an Indenture made the 3d of March 1803, between Francis Thornton and Sarah his wife, and Robert Dunbar and Elizabeth his wife, of the one part, and Eevi, John and William Hollingsworths, of the other part; by which the said Thornton and wife, and Dunbar and wife, in consideration of the sum of five thousand dollars, bargained and sold to the said Hollingsworths a certain Mill seat on Rap-pahannock River, containing an acre and a half of land, by certain metes and bounds, “together with the necessary right of taking water by a race or canal, to be cut from the lower end of the forebay at Thornton and Dunbar’s present grist mill pond, to the Mill seat so intended to be sold and conveyed; which race is to be of sufficient width and depth to convey water for at least five over-shot wheels, and from the said Mill seat to the River, not to exceed eighteen feet in width at the bottom under the reservations, restrictions and covenants in certain articles of agreement in this Indenture recited; as also the water necessary for the said Hollingsworths to turn two water wheels, to be taken from the grist mill pond of the said Thornton and Dunbar, therein also intended to be bargained and sold, sufficient to work two water wheels with four pair of mill stones, not to exceed six feet in diameter, and the necessary machinery usually used for making and bolting flour, cleaning and screening wheat and corn ; provided there shall be first a sufficient quantity of water for the grist mill of the said Thornton and Dunbar upon the present construction, or the same quantity, to be used conformably to the said agreement:’" and the said Thornton and Dunbar, and each of them, for themselves, their heirs, &c. did covenant, promise and agree to and with the said Hollingsworths, that they the said Thornton and Dunbar, and each of them, &c. ‘"the aforesaid acre and a half of ground Mill seat and necessary right of taking water by a race or canal *to convey the water to and from the said Mill seat, water, privileges, &c. to them the said Hollingsworths and their heirs and assigns, should and would warrant and forever defend, against the claim or claims of all person or persons whatsoever.”
    The breach stated in the declaration was, that the defendant, “during the time, between the 27th day of September 1806, and the 27th of November in the same year, did prevent, hinder and deprive the plaintiffs from the water necessary for them to turn two water wheels, to be taken from the grist mill pond of Thornton and Dunbar in tne said indenture mentioned, sufficient to work two water wheels with four pair of mill stones, not to exceed six feet in diameter, and the necessary machinery usually used for making and bolting flour, cleaning and screening wheat and corn ¡ — although there was sufficient therefor, under the proviso that there should first be a sufficient quantity of water for the grist mill of the said Thornton and Dunbar upon its then construction; but the said defendant diverted the said sufficient quantity of water, so sold to the plaintiffs, and suffered the same to be diverted by others, from their the said plaintiffs mill, during the period aforesaid.”
    The defendant pleaded not guilty, and covenants performed, and issues were joined.
    At the trial the plaintiffs gave in evidence the indenture on which the action was brought; and a Record of the County Court of Spottsylvania, shewing that leave was given the plaintiffs, on the 2d of October 1804 to erect their Mill. They also proved that they did so within the time prescribed by law, and cut the race, &c. agreeably to the provisions of the Deed: they gave in evidence a plat shewing the situation of that Mill, and of the Ralls Mill, called in the Indenture Thornton and Dunbar’s Mill, both being on the south side of Rappahannock river; a Mill belonging to Stephen Winchester, Howard & Co. in an island, above that of Thornton and Dunbar; the Forge Mill, and four other Mills, on the north side of the river; and proved the position of the several dams; the dam of the Forge Mill being on the main stream, above all the rest; that Dunbar, at the time of the covenant, and still, owned the Forge Mill, and three of the other Mills on the north side; that Thornton and wife, by Deed, dated June *27 Ih 1805, conveyed the Falls Mill, land &c. to the defendant, who, ever since, had possessed and occupied it; that, by an order of the County Court of Spott-sylvania, leave was given to Stephen Winchester to erect his Mill; which order was made, in July 1803, by consent of the defendant and Francis Thornton ; and that the abutment for the dam to turn the water to the said last mentioned Mill was at that time the property of Thornton and Dunbar. The plaintiffs also read the deposition of a witness proving that there would have been water enough for the Falls Mill, and for the plaintiffs also, a considerable part of the time stated in the declaration, had it not been diverted to the defendant’s Mill, called the Forge Mill, on the north side of the river, and to the Mill of Winchester; that the water, used at any of those Mills, could not be used by the plaintiffs; and that their Mill was stopped by that diversion. The defendant proved that the Mill and dam of Winchester were built prior to December 1802, but without any legal authority ; and introduced several witnesses, who swore that, “during the period stated in the declaration, there *was not a sufficiency of water in the river to work and carry the Falls Mill.” Whereupon the Counsel for the plaintiff moved the Court to instruct the Jury, that if, upon the said evidence, they should be of opinion that, at any time between the 27th of September and 27th of November 1806, the plaintiffs were deprived of a sufficient quantity of water for the use of their said mills, according to the terms and effect of the said Indenture or Covenant, by reason of any diversion and use, during the said time, of the water of the said river, by the said Winchester, by means of his dam and Mill described in the said plat, “then the said defendant had broken his Covenant, as stated in the declaration ;” which instruction the Court refused to give; but instructed them, that, if they should be of opinion that, “during that period, the defendant committed any act, by which the plaintiffs were deprived of the use of water according to the terms and condition of the Covenant, and by that act was used at Winchester’s Mill, the Covenant was broken.”
    The plaintiffs then moved the Court to instruct the Jury that, if they were of opinion, from the evidence, that the plaintiffs were deprived of the use of water for their said Mill, according to the terms, &o. of the Covenant, during the period stated in the declaration, by reason of the diversion and use of the water of the said river by the defendant’ at the Forge Mills, in that case the defendant had broken his Covenant, as alleged in the declaration ;— which instruction the Court refused to give.
    The plaintiffs excepted, &c. ; the Jury returned a verdict for the defendant; and the plaintiffs appealed to this Court.
    Williams for the Appellants.
    The Court erred in refusing to give the instructions requested by the plaintiff’s Counsel. The construction of the Covenant being a matter of law, not of fact, the Court was bound to instruct the jury upon the law.
    This was an express Covenant, to warrant to the Hollingsworths water sufficient for their Mill; and therefore the defendant was bound to performance at all events, or to pay damages *for non performance,  It may be said that, if Winchester used the water improperly, our remedy was against him and not against Dunbar; — but Winchester’s doing so with Dunbar’s permission must be considered as his act, and he is responsible.
    2. The instruction given, was erroneous. The Judge declared, that to make the defendant liable, the act, by which the plaintiffs were deprived of the water, must have been done during the period charged in the declaration. This cannot be law. If the act was done before the 27th of September, but the injury was produced afterwards, the Covenantor Dunbar was equally responsible. The declaration does not charge that that was the da3, on which he did the act; but that the loss occasioned by it commenced on that day. It is similar to the case of an Eviction, in which the injury sustained is at the time of the Eviction, though occasioned by a prior act of the party, who covenanted that the title should be good.
    George K. Taylor for the Appellee.
    The question propounded by the plaintiffs, and submitted to the Court, is, was the establishment of Winchester’s Mill, by a Court of Justice, under a compromise with the defendant, a breach of the defendant’s Covenant with the plaintiffs?
    It was not: because the contract ought to receive a reasonable, and, if necessary, a restrained interpretation, for the accomplishment of justice, according to the intention of the parties, as collected from the whole context of the instrument,  Now what is the intention of the parties, to be collected from the whole context of this instrument? — 1st, that the plaintiffs should have an acre and a half of land: and they have it. 2d. That they should have a sufficiency of water from Thornton and Dunbar’s pond, provided they could spare it,, after supplying their own wants. When a man grants the water out of his pond, he grants what, having come down to him under an order of the law, is his own. But the water in Thornton and Dunbar’s pond is very different from the water of all Rap-panhannock River: the one is their own; the other belongs to the public. The public granted to them the right to so much only of the water, as would would at all times be necessarj' for their Grist Mill. When, therefore, they sold a part of that water, *to be taken out of their pond, they could not reasonably be said to sell the water of the river at large.
    Again: the plaintiffs purchased with full knowledge of Winchester’s application, and of the probability of its success. If they had wanted Thornton and Dunbar to stipulate for more than the water in their pond, would they not have insisted on terms broad enough to cover all the water in the river? But they knew, from the previous experience of several years, during which Winchester’s Mill had been in operation, that, generally, what came afterwards to the Mill of Thornton and Dunbar was sufficient for both; and, therefore, they bargained for no more. But even if this could be tortured into a Covenant for all the waters of Rappahannock, yet as, for sixteen years past, with the exception of two months, the compromise has been harmless, are we to be liable for the act of God, during the uncommonly dry season of 1806. 
    
    As to the compromise itself, what would opposition have availed? In that wheat country, the public good required the Court to encourage the establishment of manufacturing Mills. Our previous rights were only to as much water, as might be necessary for our purposes. Had we opposed the motion of Winchester, the Court would have reminded us of this. Had we reminded them of our bargain with Hollingsworths, they would have told us they remembered that too, and would take care of all. But by the compromise itself, provision was made for the plaintiffs; for Winchester was bound so to construct his Mill, as to use only one half of the surplus water after supplying ourselves; the other half to be left for the use of the plaintiffs. How, from the plaintiff’s own testimony, it appears that Winchester’s Mill continued to grind after the plaintiffs had ceased; which proves, not that our compromise was injurious, but that Winchester had acted fraudulently, and therefore, under the act of Assembly concerning Mills, is liable to an action, 
    
    Wickham on the same side. The plaintiffs prayed the Court to give instructions on points, which were proper to be decided by the Jury and not by the Court, who therefore very properly refused to give them.
    
      With respect to the construction of the Covenant, it is a plain one; and, taking into consideration the situation of the ^parties, no one can be at a loss to discover their meaning. No change of the existing Mills was contemplated : the water was to be taken, as it then flowed. Not a word is said in the Covenant about putting down the dam of the Forge Mills, or that of Winchester’s Mill. It is true that Winchester’s Mill had been erected without leave; but a subsequent order granting leave relates back to the time of erection. The right to recover damages being left open to every body, the erecting a Mill without leave is no bar to the Court’s granting it afterwards. Before the date of this contract, Winchester had applied for leave: there was therefore his probable right, with present possession. The Hollingsworths entered into this Covenant, knowing these circumstances.
    The consent of Thornton and Dunbar was only, that Winchester should have the surplus water. The Hollingsworths were not bound by that consent. They might have opposed Winchester’s motion for the Mill, and if defeated, might have appealed. It cannot be presumed that they were ignorant of the proceedings: they were bound to take notice of what was done in a Court of Record. All they could possibly contend for, was an equal right with Winchester, who in fact had a priority of right, because the inquest on his writ of ad quod damnum had been taken first.
    There is nothing in the law, forbidding a Court’s giving leave to erect a new Mill on a stream above an old Mill already standing, and to deliver the water below such old Mill. It is a question of sound discretion : it ought to be done with great caution on a small stream, but may with great propriety on a large river, whose water is abundant.
    Winchester is a wrong-doer, so far as he took, more water, than he was authorized to take by the order, which established the most exact equality between the Hollings-worths and him. And 2 Saund. 178 (notes 7 and 8) is decisive, that a Covenantor is not bound to guard against the unlawful acts of third persons.
    The object in bringing this suit is to give a preference to the latest over the more ancient Mills.
    The order, granting leave to the Hol-lingsworths, was subject to the prior order in favour of Winchester. By building their Mill they made their election to acquiesce, and waived all right to sue Thornton and Dunbar. To authorize them to *bring this suit they should have abandoned the building of their Mill.
    Wirt in reply.
    It is not true that the instructions, moved for by the plaintiffs, called upon the Court to settle the facts as well as law. The evidence was set out in the bill of exceptions, to shew that the instructions were relevant and not abstract; but the Court was only requested to give an opinion upon the legal construction of the contract.
    This is a case of covenant between parties possessing different degrees of knowledge in relation to the subject. Dunbar, for several years before his contract with us, had been the proprietor of the Forge Mills, to which the water was drawn from the main stream above the island, and of the other Mills on the north side of Rappa-hannock down to Falmouth, as well as of the Fails Mills on the south side. He was therefore experimentally informed of the average annual supplies of water, and what he might safely undertake to purchasers of his scites on the south side. His land on the south side was chiefly valuable for its Mill seats: but no purchaser of a lower scite would be satisfied, without a certainty that his supplies of water would not be cut off by those, who might come after him, and build above. It was perfectly natural, therefore, for a purchaser below, to exact a covenant and warranty of a supply of water, and as natural for the owner of the soil to make it, if his past experience justified such a covenant, as prudent on his part. Under these circumstances, the Hollingsworths were induced to make the purchase of an acre and a half of ground at five thousand dollars, and to incur a heavy expense by digging, over difficult ground, a canal capacious enough to carry water for five wheels.
    It is a case of express Covenant, before a Court of law; in which there is no power on the part of the Court to relax the terms of the Covenant; and in which, in this instance, it would be unjust, as well as illegal, to exercise any such power; unjust, because it would place the Hollingsworths on ground, which they would never have occupied, but for the inducement of this covenant, on the faith of which they have encountered vast expense; and illegal, because such course would be to impair the obligation of contracts, to dissolve existing contracts, *and to make new ones against the sense of the parties. In Rngland, it is only necessary to shew a Covenant to be express, to induce the Court at once to give up all ideas of construction; much less of mollifying the Covenant under a notion of hardship on the part of the Covenantor. The answer is, “you ought to have considered this before you made the Covenant; and if it be hard on you to insist on your executing your Covenant, it may work equal hardship on the Covenantee to discharge you from it.”
    I shall shew, by and by, that a compliance with this Covenant on the part of Dunbar was perfectly easy; and that whatever hardship exists in the case arose, first, from his voluntary arrangement with Winchester, after his warranty to us; and secondly, from his avarice in the use of his Mills on the north side. At present, I propose to recall to the Court the principles on which express Covenants are enforced in Rngland, and will show, as I go along, their application to the objections raised on the other side: thus,
    1. It is objected, that we make Dunbar warrant against the acts of strangers, over whom he could have no control. Answer. The case of Paradine v. Jane, Alleyn’s Rep. 37, was a case of an express Covenant to pay rent; the tenant pleaded that he had been driven from the premises by a hostile invasion, (that of Prince Rupert,) and was held out, by force during the whole term, for which rent was claimed; whereby he could not take the profits; yet the plea'was ineffectual.
    2. It is objected, that we make him warrant against droughts, which are the acts of God. The principle was settled in the same case, on the authority of Dyer 33, a. that an express Covenant to repair is obligatory, though the house be burnt by lightning, or thrown down by enemies,  The case of Monk v. Cooper, 2 Str. 763, and 2 Ld. Raym. 1477, is the case of a tenant, forced to pay rent by virtue of an express Covenant, although the premises were burnt without his default; and although the lessee was expressly exempted from repairs in that event. On the same principle, and on the authority of that case, was decided that of Belfour v. Weston, 1 Term Rep. 310. The distinction, between a duty created by law, and an express Covenant, is very clearly laid down in Beale v. Thompson, *3 Bos. and Pull. 420, where the case of Paradine v. Jane is again recognized as law.
    It would seem necessary, then, only to inquire, whether the Covenant on the part of Dunbar, to supply us with water for two wheels, was, or was not, an express Covenant, and the warranty of that water an express warranty?
    The Covenant is recited in the body of the deed: it sells, 1st, an acre and a half of land for a Mill seat; 2dly, water, to be taken from Thornton and Dunbar’s pond, amply sufficient for two overshot wheels. If the sale of this water be not express, neither is that of the land. It is objected, that nothing more is sold, than the privilege of taking water from the pond : but it is a sale of “the water;” the pond is merely the place of delivery. If any doubt can be entertained upon this subject, it is removed by the deed itself, in which the privilege and the water are distinctly and separately recited, both in the conveying part and in the warranty. As to the objection, that the water is to be taken from their pond, it is like a sale of any other article, deliverable at a particular place; as flour from a Mill, &c. There is no proviso in the deed, that the Hollingsworths should have the water, if it should be there; — the sale and warranty was expressly and absolutely of water sufficient for a specified purpose; and, if it was not there, Thornton and Dunbar were jointly and severally bound to procure it, or to make compensation in damages. It is no argument to say that this is making them sell and warrant what they had no right to, — the water of the river. They had already a sufficient command of water to enable them to comply with the warranty; or if they had not, and could not procure it, still, according to the cases, they were bound to answer us in damages.
    The reservation, in behalf of their own Mill, qualified the generality of the words,' so far as that reservation goes, but no farther: towards all other objects and purposes, the terms of the Covenant, Grant and Warranty are universal and express. Now, let it be remembered that exceptio unius est exclusio alterius; and, expressum facit cessaret acitum. The express reservation of water for the Ralls Mill excludes every tacit or implied reservation for any other purpose: none for the Forge Mills; none for Winchester’s Mill; against these and all other interferences, ^except the one expressed, the Covenant and Warranty are express and universal. If, then, we were deprived of water by any other Mills, or any other cause, than that, which we agreed should deprive us of it, the Covenant and Warranty are broken. It may be said there was no necessity to make a reservation of water for the Forge Mills; for they were ancient, and their antiquity gave them a legal right in preference to us. But so were the Falls Mills and their antiquity might equally have protected them. We are not claiming a preference over the Forge Mills by operation of law, but by the express Covenant; and we point to the Forge Mills, as furnishing the Covenantor with the means of compl3ing with his Covenant, and as one of the causes of the deprivation of water enough for our wheels, not provided for by the Covenant.
    It is said, that the Court is to look at the state of things at the time of the Covenant; that the parties did not propose to change that state; and we were to take the water, as it then flowed into the pond. Agreed, as to the first part of these propositions: but, then, look at both sides: look at the inducement, which led Hollingsworth to give this high price for this Mill seat: and, as to their taking the water, “as it then flowed into the pond,” there is no such provision in the Contract.
    If this construction of the Covenant be correct, and the principle true, that he, who enters into an express Covenant, is bound to compliance at all events, much more ground is covered, than the instructions we called for made necessary. For if it be true, that Dunbar was bound to make his warranty good against every cause, save only the use of water for the Falls Mills, then, anj- other cause, which deprived us of the use of the water, is a breach of this Covenant.
    The breach, too, is aggravated by having been the effect of a consent on the part of Dunbar; disabling him from a compliance with his Covenant, unless by drawing on the waters of the Forge Mills. From 1799 ’till 1803, as long as he chose to resist Winchester, he kept him at bay; and it was not until his consent was given, that Winchester obtained his order. It was then not the act of the Court, but the effect of an agreement. He did this to gain an advantage to himself; an abutment against the island; regardless of his Covenant with us. And *what was this, but bartering away the water, to which we were legally entitled?
    It is objected, that Winchester’s Mill was erected before the date of our Covenant. True; but unlawfully erected, therefore liable to be abated. “We knew the probability of his success, and therefore should have calculated on it.” Dunbar knew it equally well, and, therefore, should have taken care how he entered into a Covenant and Warranty which Winchester might disable him from complying with. The very arrangement he made with Winchester is a practical exposition, of the Covenant, by Dunbar; shewing that he considered himself bound to see that we were supplied with water.
    “We might have resisted Winchester’s application for the Mill.” We were not interested in resisting it: we felt secure under our Covenant and Warranty, from Dunbar; and he, who was interested, ' was a party in that contest.
    Again, it is said, “the consent given by Dunbar did not bind the Court.” But the order of the Court was expressly found on it. “The Court would have done the same things, or worse, whether he consented, or no.” This is an assumption: the Court did not do the same thing for four years; and never did it ’till he gave his assent. “We ought to have calculated on other Mills being built above us.” He ought to have calculated on it before he entered into his warranty. “Dunbar is not bound for the acts of others, under authority of 2 Saund. 178, notes 7 and 8.” Those notes relate to a different species of Covenants; for quiet enjoyment simply; and merely decide that, on such a Covenant, the Cove-nantor is not bound for acts of strangers. But suppose it had been “for quiet enjoyment against himself and all others:” — the case would then have been different. This, however, is not a passive Covenant, like that for quiet enjoyment: it is an active, express, and positive Covenant, like that to pay rent; as to which, we have seen that the party can not excuse himself, either on account of the acts of strangers, or of God. Besides, the cases in Saunders turn on the ground that the party has a remedy against the wrong doer: whereas we have no remedy against Winchester, who Is acting under an order of Court founded on the consent of our grantor. If he has violated his ''contract in taking more than bis half of the water; we are no parties to that contract; the right to sue him is in Dunbar.
    
      
       See monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192. See also, footnote to Fisher v. Duncan, 1 Hen. and M. 563, containing an excerpt from White v. Hoster Brewing Co., 51 W. Va. 259, 41 S. E. Rep. 180, in which principal case is cited.
    
    
      
       Note. That a Bill of exceptions cannot have the effect of a demurrer to evidence, see Keel et al. v. Herbert, 1 Wash. 203, and Wroe v. washington, &c. Ibid. 362. — Note in Original Edition.
    
    
      
       Note. The application of Stephen Winchester for leave to erect the Mil) in question was made to the Court of Spottsylvania County on the 3d of December 1799, though the order in his favour was not obtained until July 1303. The application of the Hollingsworths, was in May 1303. The consent of Dunbar and Thornton to the order in favour of Winchester was upon the following conditions, to wit. “that they should first have the quantity of water necessary for their "Mills, commonly called the Pall Mills, as heretofore used; that is, two tub Mills upon their present construction, to be used in any way they might think proper; and that the residue of the water passing down the south fork of the Rappahannock should be equally divided, so as that the plain till (Winchester) should have one half thereof only for his Mill, and the defendants (Dunbar and Thornton) the residue: and that the said plaintiff should construct his dam, thereby authorized to be built, so as to sutler the said quantity of water to flow to the Mills of the said defendants. And the said defendants a,re to be permitted by the said plaintifi to abut their present dam against his island, formerly called Mortimer's. On consideration whereof, the said defendants agree to give to the said plaintifi the abutment of his dam at the place in the said inquisition mentioned, without paying- any sum therefor; he relinquishing aii right to the acre in the said inquisition mentioned, except enough to j oin his dam to. But this compromise is not to be construed, as conceding or giving up. on the part of Robert Dunbar, any participation of the water in the main body of the river, above the plaintiff’s island, to which the said Robert Dunbar is enti tied; and, on the other hand, this compromise is not to be construed, as au admission on the part of the plaintiff that Robert Dunbar is entitled to any water above the said island. — Note in Original Edition.
    
    
      
       The transcript oí the Record seems defective in this place: probably some words are omitted.— Note in Original Edition.
    
    
      
       Beale v. Thompson, 3 Bos. and Pull. 420; Monk v. Cooper, Str. 763; 2 Ld. Raym. 1477. S. C.; Paradine v. Jane, Alleyn’s Rep. 27; Belfour v. Weston, 1 T. R. 310.
    
    
      
       Browning v. Wright, 2 Bos. and Pull. 22.
    
    
      
       Nelson v. Anderson, 2 Call, 286.
    
    
      
       Rev. Code, 1st vol. ch. 105: sect. 7.
    
    
      
       See also Ross v. Overton, 3 Call 309.
    
    
      
       Chaplain v. Southgate, 10 Mod. 383.
    
   Thursday, November 7th, 1816. The President pronounced the Court’s opinion, that the instructions, asked of the Superior Court by the Appellants, involved their right to the exclusive use of the water, used at the two Mills, in the Bill of Exceptions stated, during the term therein also mentioned; and, as the question touching the said right depended on the testimony, stated in the Bill of Exceptions, as well as the Indenture, on which the action was grounded, it was not competent to the said Court to say whether the same was sufficient, or not, to warrant the conclusion, set up by the said Appellants in relation thereto ; unless the sufficiency thereof had been duly submitted to the judgment of the said Court by a demurrer to evidence; and that there is no error in the said judgment in declining to give the instruction asked as aforesaid: but the Court is of opinion, that, while the Superior Court had justly disclaimed passing an opinion upon the contract, for the reason aforementioned, the instruction, actually given by it in relation to Winchester’s Mill, seems to be a departure from that principle, and is liable to the objection, that it might have tended to limit the inquiries of the Jury to dams erected, or obstructions made, during the term stated in the said Bill of Exceptions, in exclusion of such, as might have been made anterior thereto; and that the said Judgment is erroneous; it is therefore reversed, the verdict set aside, and the cause remanded for a new trial, on which no such instruction is to be given.

JUDGE COAETER,

differing, in some points, from the rest of the Court, delivered the following opinion.

The Bill of Exceptions in this case states that, on the trial, the plaintiffs offered in evidence a deed, executed by Thornton and Dunbar the defendant, to the plaintiffs, dated the 3d of March, 1803, in which is recited an agreement entered into between them on the 16th of December, 1802, by wnich Thornton and Dunbar covenant to sell and convey to the plaintiffs an acre and a half of land, for a Mill seat, together with the necessary right of taking water by a canal, to be cut from the lower end of the forebay of Thornton and Dunbar’s Mill, called *the Falls Mills, amply sufficient for two overshot wheels, &c., and which canal was to be of sufficient width to contain water for five overshot wheels; provided that an ample quantity of water was to be left for the said Mills of Thornton and Dunbar. The deed then goes on to convey, with warranty, .the land and water privileges according to the stipulations in that agree ment. They also produced the Record of Spottsylvania County Court of their application for leave to erect their Mill. Their application was made on the 3d of May, 1803, to erect a Mill on their land, the water to be taken out of Thornton and Dunbar’s dam on the Rappahannock River, the bed whereof belongs to the ' Commonwealth. The order of Court in their favour was made in October, 1804. The Jury in their Inquest, and the Court in their Judgment, have reference to the Deed and Covenant between the parties, and state also, that the bed of the river, from Thornton and Dunbar’s dam on which the water is to be taken, belongs to the Commonwealth, and the Mill is established agreeably to the terms and conditions of the Deed and Covenant.

It then states that the plaintiffs proved that, before the expiration of the three years mentioned in the Covenant, they built their Mill, and dug the canal, according to the agreement; and that, thereafter, until the 27th of September, 1806, they enjoyed a sufficient quantity of water. They also introduced a plat of the river, which the parties admit, and agree gives a true representation thereof, and proved, that the water used at the Forge Mills, Winchester’s láills, and the Falls Mills, all of which are represented on said plat, could not be used at their Mill, and that the Forge Mills had been erected long before the sale to them, and at that time and ever since, belonged to the defendant.

It appears from the plat, that there is. an island in the river, called Mortimer’s island, now the property of Winchester; that the Forge Mill dam is erected across the river, above this island, from which a canal is taken, and which supplies water to what are called the Forge Mills, and several other Mills below, and returns the water into the channel on the north side of the island. That the water to work Winchester’s Mill, which is on the island, is taken out of the south channel, by a low dam above the dam of Thornton and Dunbar, mentioned in the ^contract, which is also across the south channel, and discharges the water also into the north channel, so that it never returns to the dam of Thornton and Dunbar from which the plaintiffs get water to their Mill.

The plaintiffs also introduced a deed from Thornton to Dunbar presume, to show that the title is now in the latter.

They then gave in evidence the record of the proceedings in Winchester’s application for leave to build his Mill. This application was made in December, 1799, and states that he is owner of land on one side of the river, the bed of which belongs to the Commonwealth; that Thornton and Dunbar own the lands on the other side; and he prays for an abutment against their land, &c. The Inquest is taken on the day of March, 1800, auhorizing a dam of a certain height, &c. The Order for leave to build the Mill was entered in July, 1803, in conformity with a compromise between him and Thornton and Dunbar, to this effect: that Thornton and Dunbar shall first have the quantity of water necessary for the Falls Mills; and that the residue of the water, passing down the south fork, shall be equally divided, so that Winchester shall have one half thereof only, and Thornton and Dunbar the residue; they to have an abutment against Winchester’s island for their present dam, and Winchester to have an abutment against their land, on giving up the acre condemned by the Jury, and without paying the damages found: other matters in dispute between those parties about the water above the island not to be considered as yielded by either. All these documents are referred to, and made a - part of the Bill of Exceptions, and of the Record.

The plaintiffs also gave in evidence the deposition of John Ward, which is admitted by the parties, and goes to prove the defect of water at the plaintiffs Mill during the time laid in the declaration, and that, if either the Forge Mill or Winchester’s Mill had stopped, there would have been water enough for a considerable portion of that time.

The Bill of Exceptions then states, that the defendant proved that Winchester’s dam and Mill had been erected and used three or four years before the contract entered into, as aforesaid, between the plaintiffs and defendant, and that the plaintiffs knew it; and also introduced a witness, who swore that, during the *time laid in the declaration, there was not water enough in the river to work the Falls Mills.

Whereupon the plaintiffs moved the Court to instruct the Jury that, if, upon the said evidence, they should be of opinion that, at any time within the period, laid in the declaration, the plaintiffs were deprived of a sufficient quantity of water for the use of their Mills, according to the terms and effect of the agreement, by reason of any diversion and use of the water by Winchester, then the defendant had broken his Covenant. The Court refused to give this instruction, but instructed the Jury tnat, if they shall be of opinion that at any time within that period the defendant committed any act, by which the plaintiffs were .deprived of the use of water according to the terms and conditions of the contract, and by that act it was used at Winchester’s Mill, the said Covenant was broken.

The plaintiffs then moved the Court to instruct the Jury that, if they were deprived of water by the use of it by the defendant at the Forge Mills, it was a breach of the Covenant; which instruction the Court refused.

The Jury having found a verdict for the defendant, the plaintiffs appealed.

This case was argued before us as to what should be considered the sound construction of the contract; no doubt seeming to. be entertained, by the counsel on either side, of the power of the Court to take into view as well the facts relative to the situation of the subject matter of the contract, as of the parties at the time it was entered into.

I believe there would be no great difference of opinion between the Judges as to the construction of the contract, provided it had been proper and competent for the party to call for such opinion by way of instruction to the Jury, instead of having that question presented for the consideration of the Court by a demurrer to evidence, special verdict, or case agreed. The propriety of the course taken is, therefore, first to be considered, and in which I have the misfortune to differ from the rest "of my brethren.

So far as this case depends on the written documents and records, it would seem to me within the province of the Court to examine and decide on their legal effect; and that so far as the Bill of Exceptions, instead of setting out the parol evidence *at large, states generally the weight of it, and that it proved so and so, I consider it as tantamount to, and in effect, a case agreed, as to such facts so stated to be proved.

All the facts in this case, which are in the smallest degree explanatory of the situation of the subject matter of the contract, and of the knowledge of the plaintiffs of that situation, at the time it was entered into, are to be found in the written documents, or in the facts so stated to be proved. The deposition, stated in the Bill of Exceptions, goes altogether to the actual want of water, and the probable loss occasioned thereby, and to the fact that if the Forge or Winchester’s Mill had stopped, there would have been water enough; on which latter point there is a contrariety of testimony, the defendant’s witness swearing that there was not water enough in the river for the Falls Mill; so that, had the instruction been given as asked, this point was still open to the Jury, who, (if they believed the defendant’s witness,) might, nevertheless, have found for him; and therefore the instruction was asked hypothetically as to this point, and which is also reserved for the Jury alone, as well by the nature of the testimony, it having no relevancy to the point submitted, as by the manner in which it is mentioned in the Bill of Exceptions.

But if there had been a contrariety as to the other facts, as, for instance, whether Winchester’s Mill and dam were in existence at the time of the contract, or whether that was known to the plaintiffs, still I think it would be competent to the parties, and that it is the constant practice, to apply to the Court to instruct the Jury that, if they shall be of opinion, from the evidence, that the fact is so and so, then they ought to find in a certain way. It would seem to me, that great inconvenience and injustice would result from the negative of these propositions. The parties cannot be compelled to agree a case, nor can a Jury be forced to find a special verdict; and in the very case before us, wherein there was a contrariety of evidence as to one point, which a Jury alone can weigh, a demurrer to evidence would have been improper. In all such cases, the party would be deprived of the legal knowledge of the Court, and of his privilege to bring his case finally before this tribunal.

I cannot perceive how the case of the construction of a covenant, that is to say, what was the true meaning and intention *of the parties thereby, can differ from other cases; unless, in-

deed, it is said, that the facts, disclosing the situation of the subject matter of the contract, and of the parties, at the time it is entered into, cannot be considered by a Court, when deciding on the construction to be given; but that, in such case, the Jury alone can determine on the construction; in other words, that what was the meaning and intention of the parties, in all such cases, is a matter of fact to be found by the Jury. According to this reasoning though, if the Jury in this case had found a special verdict, setting out all the written documents in the Bill of Exceptions, and all the other important facts in the case, this verdict ought to have been set aside, because the Jury did not find, as a fact, that the defendant did or did not intend by his contract, to warrant against Winchester’s use of, or right to use, the water: and hence it would follow, that this is a case, in which no special verdict could be found; for the meaning and intention of the contract in this respect being the very point in controversy, and the only one, that could be reserved for the opinion of the Court, the finding of the Jury, as to this point, one way or the other, would amount, in effect, to a general verdict, leaving nothing for the Court to decide. So I might say of a case agreed; unless, indeed, the parties were to agree that the true construction of .the Covenant was so and so; (for, if that isa matter of fact, it must be either agreed or found;) and which, in this respect, would amount to a confession of judgment by the one party or the oth«r. And, as to a demurrer to evidence, there could be none in this case, there being, as before stated, a contrariety of testimony as to one important point.

Eor these reasons, and believing, from as careful an examination of the cases, as I have been capable of giving them, that there is no case in this Court, or elsewhere, in opposition to the doctrines, for which I contend, I am of opinion that the question whether, according to the true construction of this contract, the defendant intended to warrant against any use of the water by Winchester, which use might prove injurious to the plaintiffs, was properly propounded to the Court below for its opinion, and is now properly before us for decision, as well on the Covenant itself, as on the other facts above stated. *1 am also opinion, that the Court below properly refused to give the instruction asked, being at present of opinion that the contract cannot be construed tc bind the defendant to warrant, either that Winchester should make no use of the water, when such use would be injurious to the plaintiffs, or that he should not use more than he was authorized by the compromise and order of Court; the latter being a wrong, for which an action would lie against him; and the farthest I would go in this case would be to say, that, if Winchester acquired by the compromise a right to use more water, than he had been in the habit of using at the time of the contract, so far as the plaintiffs sustained injury by such acquisition and greater use, the defendant should be responsible. Of this latter point, however, I have some doubt; and (among others) for the following reasons. When the plaintiffs purchased, they saw Winchester’s Mill and Dam in operation, and its effect upon the pond from which they were to draw their water; and no express Warranty is given against these effects; on the contrary, a large surplus of water, beyond what will suffice for the plaintiffs, seems to have been expected, even to the extent of three more overshot wheels: but, as to this point, mainly, for this reason; that, when the contract was made, the plaintiffs saw Winchester’s Mill in operation, and had a right to presume, and either did presume it was erected by leave of the Court, whose order it was their duty to inspect, if they had doubts of its effect upon the property they were about to purchase; or they knew the fact of the lis pendens as to this matter, the inquisition in Which had been found before they purchased. Knowing Winchester’s claim, as spread upon the record, to wit, that he was owner of lands on one side of a large river, the bed of which belonged to the Commonwealth ; and that the Commonwealth had theretofore only granted a portion of its water, they were bound to notice the extent of Winchester’s rights or equitable claim on the Commonwealth. This, it would appear to me, was equal to one half of the whole water, provided his Mills would require that much, and provided that would not injure the Ealls Mills theretofore established; and I would ask, if that case had been litigated throughout, and the Court had finally decided to that extent in favour of Winchester, and it had appeared that such decision could do no injury to the Falls Mill, ^whether such judgment ought to have been reversed?

Upon what principle could Thornton and Dunbar, owners of land on one side, have contended for greater rights, than the owner on the other, unless more than the half had been previously granted, as necessary to the Falls Mills? Such then was the nature and probable extent of Wis-chester’s claim, known to the parties, and who nevertheless require no special Warranty against it; and had the case been litigated, and the Order of Court extended as far, as is above supposed, and that had been finally affirmed here, could the de fendant be considered, as warranting against this? The compromise, then, is, to my mind, clearly beneficial both to the plaintiffs and defendants, as well as to the quantity of water, as in the obtaining an abutment for their dam against Winchester’s Island; which it seems it before had not; (perhaps it was only a wing dam;) and which, I presume, n ay have been an important acquisition. I therefore doubt whether, if the compromise gave Winchester more water than he had been in the habit of using; j'et, as it gave him much less than he might, and probably would have acquired, if the contest had continued, the defendant ought to be answerable.

I forbear, however, to go at large into my opinion on this contract, in as much as I understand no instruction will be given, and, if the cause goes back, it may hereafter be presented to us in a different shape. Thus far I have thought it, perhaps, not improper to go for the satisfaction of the parties.

For these reasons, too, I think the instruction given was wrong; because it authorizes, in one event, a recovery for the diversion of the water by Winchester; provided the defendant did any act occasioning such use within the time, laid in the declaration. By this I understand that, if the compromise had been entered into within that time, the plaintiffs might have recovered. But, surely, if the defendant after the contract, had diverted the water to another Mill, either of his own, or of a third person, and the injurious effects of which had no been felt until within the time laid, it would have been a breach under the present declaration ; for the continuance of the dam during that time, though not then built, would be, as to the water diverted thereby, a new act of diversion within the time. But this, I apprehend, was not the understanding of the instruction *given: it was, however, calculated to mislead the Jury, and, on that account also, wrong.

I think, also, that the Court was correct in refusing the last instruction asked for. 
      
       Ross v. Gill, 1 Wash. 90.
     