The opinion of the Court was drawn up by
Weston C. J.In the decision of this cause it is important to determine what right the grantee of Josiah Little derived from his deed, independent of the agreement, upon which the respondents rely. The grant of the undivided half of the sawmill and grist-mill, carried also the use of the head of water, necessary to their enjoyment, with all incidents and appurtenances, as far as the right to convey to this extent existed in the grantor. If then this grant could not be beneficially enjoyed, without causing the water to flow back upon other lands of the grantor, a right to do this passed to the extent to which it had been flowed before the grant, by which all privies in estate, under the grantor, would be bound. This principle was decided in Hathorne v. Stinson et als., 1 Fairf. 224. The doctrine is there very fully illustrated and the authorities referred to, upon which it rests, by Parris J. who delivered the opinion of the court.
The deed under consideration expressly granted the privilege, which as incident and necessary to the subject matter of the grant, became presently operative, upon the execution of the deed. That instrument goes on further to fix and limit the enjoyment of the privilege, from the middle of November to the middle of May. During this part of the year the head of water was to be raised to its usual height. This appears to be nothing more than would have been implied, without such specification. What follows, namely, “ and at other seasons, as may be hereafter agreed,” provides for a subsequent limitation of the grant. It refers manifestly to the exact elevation of the head of water.
The right of enjoyment was not made to depend upon the subsequent agreement, but that agreement was to limit, when made, the extent of the water power for that portion of the year, not *286precisely determined by the deed. Assuming that the parties had neglected to enter into any such agreement, or that the grantor had refused to do so, it does not follow that the grantee is therefore to be deprived, for half the year, of the use of his privilege. The result would only be, a failure to fix exactly, by compact, to what extent the grantee might flow, and to leave that matter, as an incident to the grant, to be determined by legal adjudication. For any thing which appears, the grantor had quite as much to gain, by the execution of the contemplated agreement as the grantee, considering the season of the year, to which it referred, its design may be presumed to have been rather a limitation, than an extension, of the water power conveyed. It appears to us therefore, that if there were no agreement the respondents are still entitled to the privilege, as it- had been before used.
The exceptions are based upon the rejection of Edward Little, as a witness, and the instruction of the Judge, that the defence was not sustained by the written agreement, executed by him claiming to act in behali of Josiah Little, indorsed on the deed before referred to. Although thus apparently limited, as this deed is, the case adduced by the respondents, for their justification, the instruction was too narrow, and had the effect to defeat a defence, resting upon the construction of the deed, aside from the agreement. As this may prove decisive upon the merits, in favor of the respondents, the exceptions are sustained, the verdict set aside and a new trial granted.