The action was continued, and the opinion of the Court after-wards drawn up by
Weston C. J.By construction of law, the owner of land bounded upon a brook or stream of water, goes to the thread of the stream. But he may accept a deed, in which there is reserved or secured to his grantor an easement or privilege, in the premises granted. The brook in question had been appropriated, to raise a bead of water for the use of the mills, for more than thirty years, prior to the release, under which the complainant holds. In that release are these words, “ brook to remain for the use of the mills, as heretofore, forever.”
If these words had not been in, the complainant would have had no right to divert the brook from the respondent’s mills. These words must have had some meaning. Some beneficial interest was intended to be secured to the respondent, as the owner of the mills. When we apply the language to the subject matter, we think the meaning cannot be mistaken. The respondent was to have the same use of the brook for his mills, as had “ heretofore” been enjoyed. It was to remain as before. Its volume had been for many years artificially increased, for the use of the mills ; and so it was to remain forever. The enjoyment of the property released to the complainant, is to that extent qualified. If there had been reserved for the use of one or *292both the releasors,, the privilege of cutting timber, upon a definite portion of the premises released, or a right of way, such reservation would have been good. In the present case, the soil passed to the complainant, the respondent reserving the right to cover a portion of it with water, as had been before done, for the benefit of his mills.
If there is any technical difficulty in giving effect to the manifest intention of the parties, in the clause under consideration, as a reservation, the complainant may be regarded as estopped, by his acceptance of the deed, under which he claims, to demand damages for keeping the head of water in the brook as before, or as evidence of a license to permit the respondent to flow, without payment of damages. The brook was not to remain as it then was, at the time the release was executed, when the centre of the darn had become depressed by decay, or from other causes. It was to remain for the use of the mills, “ as heretofore,” plainly embracing a former period when the dam was in a finished state. When that was carried away, and it became necessary to rebuild, we are of opinión, that upon a just construction of the clause, the respondent had a right to elevate the new dam, as high as the former oné was, before its centre was depressed. He would thus úse the water, and keep the brook in the state it formerly had been, for the use of the mills. And this is allowing him elevation enough, to justify the flowing complained of, without resorting to the state of things, in the time of the first dam, when a still greater head of water was raised.
The Opinion bf the Court is, that the presiding Judge was justified, in withholding the instructions requested, and that those given, were substantially correct.
Judgment on the verdict.