#### Samuel W. Miller *versus*John B. Bristol *et al.*

Under a grant of a mill, “ also the mill yard and all other appurtenances and privi leges, roads and appendages belonging to said mill, with the right of digging, damming and flowing for the accommodation of said mill,” the grantee has not a right to erect a trough on the grantor’s adjoining land to conduct the water to the mill, no such trough having existed at the time of the grant, and the place where it was erected not having ever been flowed by the mill dam.

This was an action on the case against five defendants, tor throwing down the plaintiff’s troughs leading to his saw-mill, and diverting the water from the same. The defendants pleaded jointly, not guilty. Trial before *Morton*J.

At the trial, the plaintiff, to show his title to the saw-mill and privileges, and his right to conduct the water to it through the troughs in question, and to raise a small dam across the river, and to make a flume in it to turn the water into the troughs, relied on two deeds under which he derived his title. One of them was a mortgage from Nathaniel and Abijah Mil ler to the State of Connecticut, dated March 26, 1813, which was subsequently foreclosed, embracing a parcel of land, bounded as follows :— “ Beginning at the northeast corner of the above described premises, thence running east to the sawmill dam where it now stands, thence north to the saw-mill brook, thence north so as to include the saw-mill and the land whereon it now stands ; also the mill yard and all other appurtenances and privileges, roads and appendages, belonging to said mill, thence west on the mill brook to a parallel line with the west line of said Nathaniel Miller’s land, and from thence to the first mentioned bound, containing about one acre and twenty rods.” The other deed was from Nathaniel Miller to Collins S. Miller, dated November 17, 1814, of the equity *558of redemption of the same land as follows : — “ A certain saw-mill, situated, &c., about fifteen rods west of my gristmill ; and also the saw-mill' yard and dam, with the right of digging, damming and flowing for the accommodation of said saw-inill, but not to dig, dam or flow so as to interfere or damage said grist-mill, &c., together with all the appurtenances and privileges belonging to said saw-mill.”

*Sept.*21si.

It appeared in evidence, that the troughs in question extended up the strearh upon the land of Bristol, one of the defendants, about fifteen rods ; that there was a slight dam across the stream and a small flume, by means of which the water was turned into the troughs and through them conducted to the plaintiff’s wheel; that all these were within fifteen rods of the old saw-mill dam as it existed at the time of the conveyance to the State of Connecticut; that in 1816 the saw-mill was rebuilt and placed a little lower down than the former one ; and that at that time the troughs, dam and flume were erected in the same form in which they existed at the time of the alleged trespass. It further appeared, that Bristol, with the aid of the other defendants, upon his own land, destroyed the troughs, at the time and in the manner stated in the plain tiff’s declaration.

The defendants then introduced a deed from Nathaniel Miller to Bristol, dated September 19, 1822, conveying a parcel of land (upon which the alleged trespass was committed) with a grist-mill thereon, situate above the plaintiff’s saw-mill, — “ reserving out of the above described piece of land one half of an acre of land, and the saw-mill standing on the- same, with the right of flowing the land lying east of said mill about fifteen rods.”

The defendants rested their defence upon the construction of the several conveyances.

A nonsuit was entered ; but if upon the foregoing facts and upon a correct construction of the deeds given in evidence, the plaintiff might recover, the nonsuit was to be taken off; otherwise a judgment was to be rendered for the defendants.

*Hubbard*and *G. I.*Tucker, for the plaintiff,

cited *Biglow*v. Battle, 15 Mass. R. 315 ; *Wolcott W. Manuf. Co.*v. *Upham,*5 Pick. 292 ; *Gale*v. *Reed,*8 East, 89 ; *Adams*v. *559Frothingham, 3 Mass. R. 352; *Worthington*v. *Hylyer, 4*Mass. R. 205 ; *Watson*v. *Boy Is ton,*5 Mass. R. 411.

*Dwight*and *Bishop,*for the defendants,

cited *Livingston*v. Ten. *Broeck,*16 Johns. R. 14.

*Sept.*22d

Wilde J.

delivered the opinion of the Court. Upon the evidence produced at the trial the presiding judge was of opinion that this action could not be maintained, and recommended a nonsuit; and after hearing the arguments of counsel and fully considering the evidence, particularly the -plaintiff’s title deeds, we all concur in the same opinion.

The action is trespass on the case for throwing down the plaintiff’s troughs leading to his saw-mill for the purpose of working the same, and diverting thereby the water from the plaintiff’s mill.

It appeared in evidence, that the troughs in question extend ed up the stream about fifteen rods upon the land of Bristol, one of the defendants, who with the aid of the other defendants prostrated the same in manner and form as alleged in the writ; and the defendants contend that, they had a right so to do, because the troughs were erected unlawfully and without the consent of Bristol.. The question is, whether the troughs were unlawfully erected and maintained, or whether the plaintiff had acquired the right to conduct the water to his mill, in this manner, over the land of Bristol.

To maintain this right the counsel for the plaintiff rely on two deeds, under which he claims title from one Nathaniel Miller, the one given to the State of Connecticut, and the other to one Collins S. Miller. The defendant Bristol derived his title to the lot adjoining the lands conveyed by these deeds, and on which the troughs were erected, from the same Nathaniel Miller, by a subsequent deed. In the deed to the State of Connecticut, after a description of the land granted by metes and bounds, there is the following clause, viz. “ Also the mill yard, and all other appurtenances and privileges, roads and appendages belonging to said mill.” And in the deed to Collins S. Miller there is a clause in these words, namely, “ Also the saw-mill yard and dam, with the right of digging, damming and flowing for the accommodation of said sawmill.”

*560Under one or the other of these clauses, the plaintiff claims th-5 right of erecting and maintaining his troughs at the place where they were afterwards erected; but we are of opinion that neither clause can be so construed as to convey such a right.

The plaintiff is entitled to all the privileges which wrere enjoyed, as appurtenant to the saw-mill, before and at the time of these grants, but the troughs were not erected until years after both grants ; and it does not appear that the place where the troughs wrere placed had ever been overflowed by the sawmill dam. The plaintiff had no right to conduct the water in a new place and in a new manner, over the defendant’s land, from any thing contained in either of the deeds under which he claims. If a man grants a way to another over his land, designating the course of it between certain termini, the grantee has no right to deviate from the course designated, although the way may become impassable by being overflowed, or otherwise. The same restrictive principle applies to the plaintiff’s claim ; though it would be otherwise, if the water had by natural means changed its course and found a new channel.

If the defendant Bristol suffered no actual damage by the continuance of the troughs on his land, still he had a right to remove them ; and if he had brought his action, instead of removing them, he would be entitled to recover without any proof of actual damages, for the law would presume damage. There is little doubt, however, that the erection of the troughs was to some extent injurious to the owner of the land, by obstructing his free passage to the stream with his cattle, and otherwise.

The erection and continuance of the troughs, without any objection by the owner of the land, will not aid the construe tion of the plaintiff’s grants. It is only where the words of a grant are doubtful, that such facts are to be considered in giving it a construction.1

*Motion to set aside the nonsuit overruled.*

1

 See *Dyer*v. *Depui,*5 Wharton, 584; *Dryden*v. Jepherson, 18 Pick. 385