The opinion of the Court was drawn up by
Shexjlet J.The first question for consideration is, whether this Court will entertain this bill of exceptions, taken to an order of the Court of Common Pleas accepting the report of referees. The provision of the stat. 1821, c. 78, §5, is, that “wherein it is agreed at the time of entering into the rule, that the report of said referees shall be final, the judgment of said Circuit Court of Common Pleas shall be final accordingly.” And the statute providing for the filing of exceptions, c. 193, *§> 5, declares, “ that either par» *172ty aggrieved by any opinion, direction or judgment of said Court of Common Pleas, in any action originally commenced in said court, in any matter of law may allege exceptions to the same.” Where referees make a final report without submitting any question of law to the consideration of the Court, their decision will be conclusive subject to the action of the Court, to which it is properly presented upon it; and if that Court upon inquiry into the facts accepts, or declines to accept it, its judgment is final. It is then in the exercise of a discretionary power entrusted to it, and it judges rather upon facts, than upon any question of law; and in such case, no exception can be alleged, as was decided in Walker v. Sanborn, 8 Greenl. 288. It appears to have been .the intention to allow the party to except to any opinion of a Judge of the Common Pleas on matter of law, in whatever form it might arise ; and where it distinctly appears, that the decision was not made in the exercise of a discretion entrusted to him by law, but upon a question of law, it comes within the letter and spirit of the last named statute, and the former must be regarded as modified by it. The clause giving this Court power to consider and determine in the same manner, as it would in actions originally commenced here, confers an authority sufficiently comprehensive to enable it to accept, recommit, or reject a report of referees; and the provision, that the Court may render judgment or grant a new trial, was not designed to limit or abridge such power, but rather to explain or enlarge it. If the referees had in this case made a final decision upon the law as well as the facts, this Court would no more undertake to reverse that decision upon the law than upon the fact. Instead of doing this, the Court must understand them as making a statement of the facts, and a formal decision in favor of one party; for they say, that they “submit the same for the consideration of the Court;” and further, that “ if upon these facts the defendants are liable for flowing the complainant’s premises, the referees will estimate and report the damages.” Such language is not indicative of an intention to make a final and conclusive decision upon the whole rights of the parties.
This case coming before this Court by exceptions, the facts stated in the bill, or referred to as making a part of the case, must alone be the ground of decision; and the Court cannot, even by *173consent of parties, look into other cases of flowing by the same dam as reported; or into the records of the proprietors of Neguasset. This ■would be to decide the law upon a state of facts different from that, which is submitted by the referees, and on which the legal judgment submitted for revision was rendered. And the facts in relation to the mills, dam, and titles, are different, in some degree, as stated in the cases reported in 1 Fairf. 224 ; 3 Fairf. 183, and in this case.
The referees have stated the facts only, as they understand them to have been established by the testimony, but not the testimony introduced for this purpose; and it may be important to notice this, as explanatory of the language used in the report. And reference is made to their report, in the case of Myers Reed v. Samuel Reed, 2d, and others, and certain facts there stated are to make a part of this report.
It appears from their report, that the proprietors of Neguasset, granted one thousand acres of land to Cadwallader Ford, which were located in the year 1761. As it is stated, that Ford was their clerk and agent, and that there was a warrant for calling a meeting, and an article to be acted upon, and that lots were drawn, this Court must understand, that they acted as a proprietary. The land flowed is a part of the thousand acres thus granted to Ford. The report also states, that “ prior to 175 J, and while said premises alleged to be flowed and said mill sites, pond, privileges, and stream, were so owned by said proprietors, they permitted mills to be erected, where the defendants’ mills now are, called Fain’s mills, with a dam, which raised the water high enough to carry said mills.” blow was this permission given, by deed, by written contract, by vote of the proprietary, or by parol ? As they acted as a proprietary, and their acts as such are referred to in the report, it is most probable, that the referees intended to be understood as stating it to have been by vote of the proprietary. However that may be, nothing appearing to the contrary, this Court must understand it to have been in some legal mode to give the right to build the dam and mill; while it cannot be regarded as conveying the land upon which they were built. A person permitted to do an act may do any thing without which that act cannot be done. The dam being rightfully built, the flowing of the water to a suffi*174eient height to carry the mill would be authorized, and as no complaint or interruption appears, the conclusion is, that it was authorized to such height as the dam then actually flowed.
The finding of the referees for the reasons before stated, is considered as equivalent to their finding the grant of an easement by a vote of the proprietors, and the grantees having entered into possession, their title will be good against subsequent purchasers.
The referees find, that the mills and dam thus built, have been continued to the present time. The grantors of the defendants thus acquired a right to flow the lands of the proprietors by their own consent to such height as the dam then flowed; and the proprietors could not afterward convey their lands free from such right. The thousand acres were granted after the right to flow had been acquired, and neither their grantee, Ford, nor the complainant, claiming under him, can have a better right to complain than the proprietors had before the grant. And so far as Pain’s mills flowed, the defendants upon this report, appear to have a right to flow without the payment of damages. How high that dam flowed the water is not stated, while it is stated, that Farnham’s dam in 1766, “ raised the water as high as does the defendants’ damand the conclusion must be, that Pain’s dam did not flow as high as Farnham’s.
John Carleton, who had purchased a fourth part of Neguasset from Daniel Fames and Cadwallader Ford, conveyed in 1745, to Daniel Farnham one sixth “ and all his right to the stream to set up mills and in 1746 Farnham and others, under that title, built mills where the defendants’ now are, and these mills appear to have been rebuilt in 1766, and to have been thus continued to the present day. The conveyance by Ford as well as by Carleton was' of an undivided part; and the words used by the latter, conveying all his right to the stream to set up mills, would not increase the estate, or convey other than an undivided right in the lands and streams. The title by which the Farnham dam and mills were built appears to have been that of a tenant in common, who entered upon a portion of the common estate, and built a dam and mills upon it, and occupied, perhaps exclusively, such portion of the common estate. He could not rightfully change the character of the estate, or do an injury to other portions of it. He would acquire *175no right as against his co-tenants to flow. And even if he had acquired a right to flow, being one of the proprietors, on the ground, that the mill had become the property of all the proprietors, and that he was but their agent; the situation of the parties would then be, that of the proprietors flowing their own lands, and afterwards while thus flowed, granting the thousand acres to Ford without reserving the right to continue to flow. And upon such a supposed state of facts, an instruction was given in the case of Hathorn v. Stinson, 1 Fairf. 224, which seems to have met the approbation of the whole court, that “ if no such right is reserved he purchases it with the right to recover damages for such flowing.” It is where the owner sells the dam and mills retaining the lands, that he conveys as an essential part of them the right to flow, not where he retains the mills and chooses to sell the land without reserving the right. Farnham’s fiovring not being legal, as against the owner of the thousand acres or his grantees, the defendants are no further protected than they can be by the flowing of Paine’s dam, as it existed before the grant of the thousand acres; and to that extent they will be protected. The result is, that the report must be recommitted to the referees to assess the damages upon these principles ; and if the Court has in any degree misapprehended their finding upon the facts, they will have an opportunity to state them more clearly, or to make a final report upon the whole matter of law and fact, without referring it to the Court.