[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 Every presumption is in favor of the correctness of findings of fact by a court or referee, and especially should this presumption be indulged when, as in this case, it appears that all the evidence given on the trial is not contained in the record. The plaintiff is entitled to the right and privilege to the spring and water flowing therefrom, which was granted by Melvin to Clark, by deed, in 1821. All other rights and title to the spring remained in Melvin, the remote grantor of Mrs. Calkins. The grant from Melvin to Clark is in these words: "And also the privilege of raising the water at the spring above mentioned, and carrying the same in such a direction as may be most convenient to the premises above mentioned, in such quantities as shall be necessary to supply a tannery which shall be hereafter erected on the premises above described, and for such other uses on said premises as may be necessary, nevertheless reserving to the said Melvin water forever necessary for the uses of said Melvin's farm." The reference to the erection of a tannery does not limit the use of the water to that purpose, but should probably be regarded as a criterion by which to measure the quantity, and the reservation of water necessary for Melvin's farm would, perhaps, receive the same construction, so that, as to quantity, the grantee would be entitled to that granted, unless the taking of such a quantity would diminish the supply below the necessities of the farm. It is, however, unnecessary to determine this point, as there is in this case no controversy about the quantity of water to which the parties are entitled.
The principal question involved is whether the means of utilizing the water adopted by the plaintiff were fairly within the right granted to him. The grant is, to a certain extent, restrictive as to the manner of making the water available. It limited the right of raising the water to doing it at the spring. The spring is twenty-five feet west of the highway, dividing that lot from the land of the plaintiff, and the dam erected by the plaintiff was on the west line of the highway, the intervening space of twenty-five *Page 5 feet being used as a pond to retain the water flowing from this spring, and also from springs above. The effect was to flood the spring, and render the water unfit for domestic purposes. It is claimed that the plaintiff was justified under the general rule, that the grant of a thing carries with it such incidental rights as are necessary to make it effectual for the purposes intended, and that this was a legitimate means of raising the water at the spring. The clause must have a reasonable construction, and there is nothing in the language or in the circumstances indicative of an intent on the part of Melvin to grant the right to flow his land. The right to raise the water at the spring is a right to increase the height of the water, and is, I think, necessarily confined to the spring itself. The evidence implies at least that this may be done without flooding any land. The effect would be to increase the head, and render it perhaps more available to the plaintiff, and for aught that appears would give the plaintiff all the water necessary for his use; at all events it would give him all that was granted. The right to flood other land was not expressly, or by implication, granted. Suppose the basin was twenty-five rods instead of twenty-five feet wide, under the construction claimed that space might be used as a pond by the plaintiff, because the effect would be to raise the waterat the spring, which he had a right to do. Such a construction is inadmissible. Still less had the plaintiff a right to intercept water from other sources, and use the defendants' land for accumulating and holding it. Nor had he a right to impair the character of the water. After his grant Melvin had the first right to sufficient water for the uses of his farm, then his grantee Clark could take the quantity granted to him, all the rest belonged to Melvin. Neither Clark nor any of his grantees had any right to do anything to render the water impure or less valuable for any purpose than it was naturally. Mixing other and less pure water with it was an interference with the rights of the owner of the spring, and was unauthorized. No such right was ever granted. The plaintiff, if he desired to raise the water in *Page 6 the spring, was bound to do so at the spring, with as little injury to the defendants' land as practicable, and without impairing the rights to the spring, which were not granted. The learned counsel for the plaintiff urged that the action should be maintained to restrain the filling up by the defendants of the basin around the spring, and bricking up the spring, as one of the defendants had threatened to do. The answer to this position is that there is no finding that anything which the defendants, or any of them, have done or threaten to do will, in any manner, interfere with the right to water granted to the plaintiff, and findings are never implied for the purpose of reversing a judgment. Besides, it is affirmatively found that the filling in of the basin has not interfered with any right of the plaintiff to the enjoyment of which he was entitled under the grant. If the facts had been found in favor of the plaintiff upon this part of the case, the legal conclusion claimed would doubtless be correct.
We concur with the views expressed at General Term, and the judgment must be affirmed.
All concur, except ANDREWS, J., absent.
Judgment affirmed.