#### * Isaac Biglow and Others *versus*Mellen Battle and Others.

The owners of a water privilege leased so much thereof as the lessee might want, except, when the whole quantity of water should be insufficient to carry the lessor’s mill, and a cotton factory which might be erected with not more than 5010 spindles. In an action against the lessee, for appropriating more water to Ins use than was granted by the lease, it was holden that case was the proper remedy, and not covenant; and that the true intention of the reservation was, that water should at all times be left sufficient to carry 5000 spindles, which the lessor might apply to what use he pleased.

This was a special action of the case, wherein the plaintiffs declared that they were owners of certain mills in *Natick,*on the north side of *Charles*River, and had a right to all the water of that river, except so much thereof as they had granted to the defendants for twenty-one years from the 8th of June, 1814, by a lease of that date; and complaining that the defendants had diverted more water than they had a right to take, by virtue of that lease, for a time stated.

*285The privilege granted to the defendants was that of “ drawing water from the plaintiffs’ dam, to turn water-wheels for their works, as they want, and as will run through gateways amounting to five square feet of surface; except when the quantity of water is so small as not to be sufficient to carry the (plaintiffs’) grist-mill, and a cotton factory which may be erected with not more than 5000 spindles.”

Trial was had upon the general issue, before *Putnam,*J.t at the sittings here after the last October term. It was proved that, at the date of the lease, the plaintiffs had a grist-mill with two run of stories, a saw-mill, and a mill for carrying one carding machine ; and they afterwards built a paper-mill. But no cotton factory had been built.

Upon the whole evidence in the case, the judge instructed the jury that, if they believed that the defendants had, at any time, taken more water than would run through gateways equal to five square feet of surface, they should find their verdict for the plaintiffs ; that, however, their verdict must be for nominal damages only, if there was more water at such time in the river than the plaintiffs wanted to use; but for the real damage, if there was a deficiency of water. The jury were also directed to find a verdict for the plaintiffs if, from the whole evidence, they believed that the * defendants had drawn even five feet of water, or any part of it, when there was a deficiency of water for the grist-mill, and of a water-power sufficient to drive 5000 spindles; unless such deficiency was occasioned by the plaintiffs’ having taken a greater quantity of water to drive their mills (other than their gristmill) than would have been sufficient to drive 5000 spindles.

The jury found a verdict for the plaintiffs, for real damages. But if the direction was wrong, the verdict was to be set aside, and a new trial granted ; otherwise, judgment was to be rendered according to the verdict.

*W. Sullivan*and *Fay,*for the defendants,

contended that, if the plaintiffs had shown any cause of action, they had misconceived their remedy, which should have been by action of covenant on the lease. Judgment in the present action would be no bar to covenant for the same supposed cause. They insisted also that the jury had been misdirected in the construction of the lease. The water-power reserved for the plaintiffs was for the use of a cotton-mill containing 5000 spindles. Until such a mill should be erected, the reservation was not to take effect. Being an exception in a grant, it should be taken most strongly against the grantor. It was no part of the contract, that the plaintiffs should have a right to the water for the use of a paper-mill.

*286
      *Gorham*and *Tyler Bigelow*for the plaintiffs.

Parker, C. J.

There is no doubt that the action is well brought. The objection is that, as the defendants held, by lease under the plaintiffs, a right to draw off a part of their water for the use of the defendants’ works, if they exceeded the quantity which, by the lease, they were entitled to take, the plaintiffs’ remedy was upon covenants in the lease. But with respect to all the water not granted by the lease, it is as if no lease had been made; and then, if the plaintiffs are injured by means of drawing more water from their mills than the lease gave a right to, they have, by the common law, a right to this action.

*As to the construction of the lease, we think it clear that the right reserved by the plaintiffs to as much water as would be sufficient for 5000 spindles of a cotton factory which might afterwards be erected, does not limit the use of the water by the plaintiffs to a cotton factory. The true intent of the reservation was, that water should, at all times, be left sufficient to carry the 5000 spindles. For it cannot be imagined that the plaintiffs would limit and restrict the use of their own privilege; nor could it be of any importance to the defendants, when the contract was made, to what use that part of the water should be applied to which they had no claim.

*Per Curiam.*

*Judgment on the vet diet.*