This action on the case has been commenced to recover damages alleged to have been occasioned to a mill site by its having been overflowed by the erection of a dam, below it, on the same stream. The case is submitted upon an agreed statement of the facts.
It becomes important to ascertain in the first place, the character and extent of the estate, conveyed by Samuel Greeley to Joseph and James Carr.
A conveyance of a mill, or of a mill privilege, or of the privilege of a mill, will operate to convey the land occupied for the purpose, unless there be in the conveyance language indicating a different intention. Blake v. Clark, 6 Greenl. 436 ; Moore v. Fletcher, 16 Maine, 63 ; Crosby v. Bradbury, 20 Maine, 61.
By the deed from Greeley to the Carrs, one moiety of a double saw-mill is conveyed “ with the privilege of forever having and keeping a saw-mill on the same plat of ground, whereon the same conveyed moiety now stands.” If the words following in the deed were omitted, there could be *398no doubt, that a moiety of the land, upon which the mill stood, would be conveyed; for a conveyance of the “ use of land forever” is equivalent to a conveyance of the land.
The right, however, is conveyed of keeping a mill on the same plat of ground forever, “ or removed further up, further down, or further into said stream, as the owner of the other moiety and the owner of the above moiety hereby conveyed, shall agree.” It has been contended, that these words had the effect to restrict the conveyance to an easement or servitude in the land. The words afford no indication, that the land, upon which the mill then was or was to be erected, was not intended to be granted, for wherever the mill should be placed, the right to have a mill remain there forever was granted. The language might extend the bounds of the privilege conveyed, or render those bounds so uncertain, that the conveyance would be inoperative, but they would not change the character of the estate conveyed. There is another clause in the deed, conveying “ also one undivided moiety forever of the privileges of a mill yard, one hundred feet square, adjoining said mill, appendant and appurtenant to, and best to accommodate said double saw mill.” This language would convey a lot of land of those dimensions ; and although such a lot does not appear to have been designated upon the earth at that time, it does appear to have been subsequently ; and when the bounds were first established by the parties according to the terms of the grant, they became the unalterable bounds of the land conveyed for a mill yard, upon the well known rule, that when a grant of a certain quantity of land is made, to be thereafter located within certain limits, the first rightful location of it upon the earth, within those limits, determines forever its extent and bounds.
The bounds of the mill yard having been thus designated, as adjoining the mill, a construction of the deed, which would permit the mill to be removed so far up or down the stream as would remove it without the bounds of the mill yard, would be inadmissible. In addition to this consideration, there is not found in the deed any express authority to re*399move the dam then existing; and the grantor excepted and reserved the grist-mill, then connected with the saw-mill, and also “ the right of keeping a single grist-mill there forever.”
Opposed to these considerations, it is insisted, that as there was but one mill site on the whole lot then owned by Greeley, his grant of the mill and privilege would authorize his grantee to use that privilege, by erecting a dam and mills upon it, where they would be most convenient and useful. Greeley, before his conveyance, might indeed have erected a dam and mills, where the dam was subsequently erected, several rods lower upon the same stream, without affording just cause of complaint by the riparian proprietors above or below his mill site. But when he had conveyed a site, and so bounded and limited it, that it would not include the whole of the site owned by him, his grantee could not claim a right to occupy the site without the bounds of his own grant.
A construction which would permit this, from the use of the words “ or removed further up or down or further into the stream,” would prevent a conveyance of a mill site and mill yard having any definable bounds and thus annihilate the conveyance.
Those, who ereeted the existing dam and mills, would not therefore, by being part owners of the Greeley mill site, be authorized to erect a dam below that site, whieh would overflow and destroy it.
The next question presented is, whether the owners of the Greeley mill site have lost their right to the prior use of the water for the purpose of moving mill wheels, by their neglect to use it for that purpose.
Their right to have a dam remain there, uninjured by any one subsequently erected below it, could only be acquired by a prior occupation of the site and use of the water. A right acquired by use may be lost by non user. Such appears to have been the rule of the civil law, which was declared to be the common law by Bracton, and it has been repeatedly *400recognized as such by judicial decisions. A non user of twenty years is regarded as presumptive evidence of an abandonment and extinction of the right. This presumption may be rebutted by proof of facts inconsistent with such a conclusion. The rule is not applicable to rights or incorporeal hereditaments, secured by a deed of conveyance.
By the agreed statement, it appears that “ the Greeley mill and dam were swept away by a freshet in 1817, and there have been no erections on their site since.” This language would be sufficient to show that these parties did not consider the existing dam and mills as standing on the Greeley mill site. This suit was commenced on April 2, 1847, but was not presented for the consideration of the Court prior to the last law term. It does not appear, that any of the owners of that mill -site, during those thirty years, made any attempt to occupy it or any complaint, that the riparian proprietors below it were making erections or using the water of the stream to the prejudice or injury of their rights.
The counsel for the plaintiffs insists, that the presumption arising from these facts is rebutted, or that the defendant’s testator was estopped to set it up against them. The presumption, it is said, should not be regarded as existing, because the owners below erected, during the' years 1833 and 1834, a dam which caused the water to flow back upon the Greeley mill site, thereby preventing an occupation of it subsequently. One tenant in common of a mill site, which has long remained unoccupied, sees that his co-tenants and others, owning land upon the stream below, are expending large sums of money in the improvement of their estate, in such a manner, that the effect must be to destroy his right to a prior use of the water above, without taking any measures to prevent it or to secure his rights, and without remonstrance, complaint or suit. Surely this conduct is rather suited to strengthen than to rebut the presumption of an abandonment.
A servitude is presumed to be extinguished, when the owner of the estate charged with it is permitted, without complaint or molestation, and for sufficient length of time, so *401to manage his estate as to wholly prevent the exercise of the rights arising out of that servitude. By the application of this principle to the present case, it would seem, that a presumption of an abandonment might arise or be strengthened by such a use of the water below, as would eifeetually prevent its prior use at the Greeley mill site.
The conveyance from Robert M. N. Smyth to the Messrs. Cooper, made on July 16, 1833, describes a tract of land including the Greeley mill site, and it states, that the meaning is “to convey one undivided fourth part of all the mills, seats, rights, privileges, and estates included within the lines aforesaid.” The conveyance made by Jonathan Farrar to Smyth, on June 20, 1833, describes the Greeley mill site as “an undivided half of a mill privilege,” “being the privilege for one saw in the south-westerly part of the mill seat called the Greeley mill and the right and privilege of keeping and supporting one saw in any saw-mill to be erected on the premises.”
By these and similar descriptions it is insisted, that the testator was estopped to deny, that the owners of that site had the rights appertaining to prior occupancy. The principle, upon which an estoppel rests, is, that one is not permitted to deny, what he has by a deed admitted to be true. If the testator could not be permitted to deny the existence of that mill site with the privileges and appurtenances therein described as connected with it, still among them the right of prior occupation is not enumerated or stated, ,as appurtenant to the site. These conveyances are all silent respecting such a right; and the testator by denying it would not be obliged to contradict any thing stated in them. By noticing the difference between a mill site entitled to a right of prior occupancy, and one, to which no such right is appurtenant, it will be perceived, that the conveyances make no statement, that the mill site conveyed is one, to which such a right is appurtenant, and that to deny it to have such a right does not contradict any fact admitted by the deeds.
The conclusion therefore must be, that the right of prior *402occupancy and use of the water for the Greeley mill site had been abandoned and lost by lapse of time and non user before this suit was commenced.
Wells, Rice and Appleton, J. J. concurred. Hathaway, J. also concurred in the result, though dissenting from the reasonings of the opinion.Plaintiffs nonsuit.