#### George Sumner *et al. versus*William Foster.

The owner of a mill, who is entitled to use only the surplus water not required by another mill, is bound to shut his gate when there is not a sufficiency of water for both ; but if the other mill-owner, in such case, undertakes himself to prevent the passage of the water to the mill first mentioned, he will be liable to an action if lie does not remove the obstruction as soon as the deficiency of water ceases.

This was an action on the case for interrupting a watei course claimed and used by the plaintiffs to carry a fulling mill. A trial was had before *Parker*C. J.

The plaintiffs derived their title under a deed from G. Green and W. Sumner (who were owners of the whole water-course) to George Sumner, dated March 6, 1814, granting the “ privilege of taking the water from the flume that the said Green and Sumner may build for the use of a cotton factory, and when there is more water than is sufficient for said cotton factory, then said George S. to have the privilege of conveying the water from said flume in a penstock, and privilege of digging a ditch through the land of said Green and Sumner for the purpose of carrying water to the above granted tract of land sufficient for any works except a grist-mill or saw-mill.” The residue of Green and Sumner’s land and water privilege, together with a cotton factory which they erected, was after-wards conveyed to the defendant. The plaintiffs dug a trench by which they conducted the water from the flume of the factory to their mill. In dry seasons there was at times a deficiency of water for the factory, and on such occasions the occupants used to request the occupants of the fulling-mill to shut their gate ; which was always done. On the 13th of Septem*35ber, 1826, the defendant requested the plaintiffs to shut their gate, stating that there was not water enough to carry the works of the factory; which they refused to do, alleging that there was no deficiency of water ; whereupon the defendant closed up the end, of his flume so as to prevent the water from running through the plaintiffs’ trench to their mill. The board used for this purpose was knocked away several times, but was immediately replaced ; and the water was thus stopped from the 26th of September to the 3d of November.

*Oct. 2d.*

*Oct. 3d.*

The jury were instructed, that as the defendant had undertaken to stop the water in its course to the plaintiff’s mill, on the allegation that there was a deficiency of water for his works, it was his duty to open the passage whenever the necessity should cease ; and that if the jury believed there was no necessity at the time when the water was stopped, or that the necessity had ceased at any time during the continuance of the interruption, they should return a verdict for the plaintiffs. A verdict being found for the plaintiffs, the defendant excepted to the foregoing instruction.

*Hoar, Newton*and Bottom,

in support of the exception, cited *Bigelow*v. *Battelle,*15 Mass. R. 313 ; *Colburn*v. *Richards,*13 Mass. R. 420 ; *Hodges*v. *Raymond,*9 Mass. R. 316 ; *Hughes*v. *Richman,*Cowp. 125.

*J. Davis, Merrick*and *Allen,*for the plaintiffs.

*Per Curiam.*

The plaintiffs having the subordinate right, it is incumbent on them to take notice when there is a deficiency of water, and if there was a deficiency when the defendant made his request, it was their duty to shut their gate ; but when the defendant undertakes to stop the passage of the water himself, he should remove the obstruction so soon as there is a supply sufficient for the use of both parties.

*Judgment according to verdict.*