#### Ulrich vs. Hull and another.

Where A., the owner of a mill dam, and B., the owner of land flowed by it, entered into mutual covenants, by which B. was not “not to sue for damages” for a certain length of time, and A., at the end of that time, was to “let the water out of the mill pond,” and in ease he neglected to do so, gave B. “ full power and privilege to tear down the mill dam without claiming any damages of him whatever;” but after the expiration of the time specified A. neglected to comply with his agreement, and prevented B. from taking the dam down; *Held,*that a court of equity would abate the dam at the suit of B.

The covenant to permit the dam to be taken down, in such a case, must be interpreted as a covenant also against rebuilding it, such being the obvious design of the contract.

A covenant not to maintain a mill dam at a particular place does not so conflict with the public policy of this state as indicated by the mill dam law, that it will not be enforced by a court of equity.

APPEAL from the Circuit Court for *Fond du Lac*County.

This is an appeal by the defendants from a judgment in favor of the plaintiff. The facts are stated in the opinion of the court.

*Priest &*Stowe, for appellants.

*H. W. & D. K.*Tenney, for respondent.

*By the Court,*

PAINE, J.

The defendant *Lyman Hull*owned *425a dam, by wbicb tbe lands of tbe plaintiff and others were flowed. On tbe 13tb of September, 1859, they entered into an agreement under seal, by wbicb tbe owners of the lands flowed covenanted not to sue for damages for tbe space of eighteen months and seventeen days, and *Hull*covenanted, among other things, at tbe end of that time, “ to let tbe water out of tbe mill pond,” and in case be neglected to do so, be gave the other parties “ full power and privilege to tear down the mill dam or tbe mill pond, without claiming any damages of them whatever,” &c. This agreement was duly witnessed, acknowledged and recorded. Tbe defendant *Hemingway*af-terwards became jointly interested with *Hull*in the dam and mill, and after tbe expiration of tbe time specified, tbe defendants having neglected to comply with tbe agreement and having prevented tbe plaintiff and the other owners from taking tbe dam down, this suit was brought for tbe purpose of abating it, and tbe court below gave judgment that it be abated.

Tbe appellants contend here that this judgment ought not to have been rendered, for tbe reason that -it will be of no avail to tbe plaintiff. It is said, that tbe agreement only requires tbe dam to be taken down, and that tbe defendants would have tbe right immediately to rebuild it, as there was no covenant not to rebuild. If this is tbe true construction of tbe agreement, it would perhaps be a good reason why a court of equity should not interfere. But we are satisfied that tbe agreement cannot be thus limited in its effect. Tbe intention of tbe parties, as it appears from tbe writing, is what constitutes the agreement. And there is not room for a moment’s doubt that it was tbe intention of these parties to provide, not merely that tbe dam should be taken down, but that it should be kept down. Tbe nature and subject matter of tbe contract fully show this.

Suppose A. and B. occupy adjoining lots. B. erects a nuisance upon bis lot which A. has tbe right to have abated. They *426make an agreement by wbicb A. covenants to take no steps to abate it for tbe space of six months, and B. covenants that at tbe end of that time *“*be will remove tbe nuisance : ” could it possibly be said that be might, without violating this covenant, remove tbe nuisance on one day and erect it again tbe next? Certainly not. The whole scope and object of the agreement would show that tbe meaning was, that at tbe end of the time specified, A. should be relieved from tbe nuisance. So here it is equally clear that tbe parties contracted to be relieved from tbe injuries occasioned by this dam. A covenant not to rebuild tbe dam or reflow tbe lands is irresistibly implied.

As remarked by tbe court in *Blood vs. Howard Fire Ins. Co.,*12 Cush., 473, “It is quite true that in many cases stipulations in forrn only affirmative, have been held to be in fact promissory.” Tbe court there referred to a class of insurance cases, quite familiar, in wbicb it is held that faerfe representations by the assured, in respect to the condition of tbe property, amount to agreements on his part, that the same condition shall remain during tbe life of the policy. It is true, there are many representations, as was held in tbe one in that case, to wbicb this doctrine does not apply. But it is simply because tbe nature of them shows that such was not tbe intent of tbe parties. But where tbe intent is unmistakable, such representations are construed to be promises that the condition represented shall remain during tbe life of tbe policy. And by tbe same reasoning, where tbe subject matter of tbe contract was on tbe one side to obtain tbe privilege of maintaining tbe dam for a certain time, and on tbe other, to be relieved from the damages occasioned by it after that time, a covenant by tbe owner to take down tbe dam, must be held- a promise to keep it down. In *Harlan vs. Lehigh Coal Co.,*35 Penn. St. Rep., tbe court say, “ Undoubtedly tbe court will construct a warranty or other contract, where none is in terms expressed by tbe parties, if our common sense of justice requires it, and it is es*427sential to complete tbe definition of the relation plainly intended to be established between the parties, and if its terms can be clearly deduced from the instrument and from the nature of the transaction.” To this case that doctrine is plainly applicable. The construction contended for by the appellant would merely “ keep the word of promise to the ear but break it to the hope.”

But it is further contended, that a court of equity ought not to interfere to enforce an agreement of this character, for t^e reason that it is against public policy. But it may be observed, that the relief here sought is only such as the plaintiff would have been entitled to without any agreement, except for the provisions of the mill dam law. No man had, at common law, a right to flow his neighbor’s land by a mill dam, any more than in any other way. If he did so, it was a nuisance against which a court of equity would relieve. *Hill vs. Sayles,*12 Cush., 454. Now it is true _ the mill dam law •has given parties the right to flow the lands of others after compensation is made in the manner therein prescribed. But this cannot be regarded as establishing a public policy that should invalidate a fair contract by which one agrees not to maintain a dam at a particular place. On the contrary, this question would seem to depend for its solution upon the same principles applicable to agreements in restraint of trade. And while agreements in restraint of trade in general are invalid, yet it is well established that they are not so when in restraint of trade in a particular place only. See *Laubenheimer vs.*Mann, decided at this term. We are unable to see why the fact that mill dams have been held to be of sufficient importance to justify an exer* cise of the right of eminent domain in their favor, should take the question as, to whether a dam should be erected in any par-' ticular place, out of the power of the parties interested, to determine by a contract fairly entered into.

We see no reason for reversing the judgment, and it is affirmed with costs.