The defendant and associates being the owners of a certain dam, inferentially insufficient for their use, conveyed the same to the plaintiff company on condition that the conveyance should be void if the plaintiff failed to rebuild and maintain the same according to its covenants so to do; and agreed to take the water at an annual rental of five per cent on the cost of the new dam, not to exceed seven thousand dollars, *576each defendant to pay his proportional part of the same in January annually, measured by the proportion of water he shall have drawn during the year.
Defendant’s mill burned in January, 1891, and since that date has taken no water, although he paid his rental until sometime after that. This suit is for rent in arrears.
The agreement provided that plaintiff might sell to other parties any surplus water in the flume on payment of their proportional part of the cost of maintaining the same. It also provided that if the mill-owners failed to pay the stipulated rent the water might be withheld in the meantime; that the gristmill might draw not over six hundred square inches, the sawmill, the chair-factory, and Harding’s mill, sufficient for their purposes not exceeding "the number of inches now drawn.”
When the agreement was made the dam had not been rebuilt, and although it contains the words "doth demise and lease to said mill-owners the right to draw water as follows,” yet, there w7ere no premises to be let, and the mill-owners do not accept the premises supposed to be granted, but "agree to lease” "the right to draw and use water” at an annual rental.
The instrument amounts to an agreement by the mill-owmers to give the new company their dam so long as they shall maintain it in an improved condition only, and to pay the whole rental to be apportioned among them yearly according to the water each one shall have drawn. No term is mentioned, and the fair inference, therefore, is, that it shall be from year to year, when each mill-owner is to pay for the proportion of water he shall have used. If one mill-owner shall have drawm no water he is still deprived of the use of his interest in the dam so long as it shall be maintained in the condition named. The other mill-owners may continue to receive their shares of water by paying the whole rental apportioned among them. This construction is much more reasonable than it would be to hold each mill-owner liable for rent indefinitely after his use of the water had ceased, as in this case.
Moreover, it comports with their respective rights as joint owners in the old dam. If one ceased to use the dam, he could *577not be compelled to contribute to its repair; meantime, the cost would be thrown upon the other owners. He would lose the use of his property and they would assume the cost of its maintenance.
The defendant’s mill had burned and presumably could not be rebuilt and run at a profit, so that he had no further use for the water. It would be an extremely harsh construction to hold him for water rent indefinitely when he shall have received no water.
The terms of the agreement are not happily expressed and do not plainly meet contingencies that were not expected when it was written; its construction, therefore, must be that which is most reasonable, and will bear the least heavily on any one. This construction saves the dam company from loss so long as any mill owner continues to draw water, and, if none take water, then the dam company simply meets the chances of investment that it saw fit to assume. It was a joint undertaking that the mill-owners should assume the rental to be severally apportioned according to their respective necessities, and that the dam company should take the risk of their taking the water. If they take none, the dam company must lose its rental. If some part of them take water, they are burdened with the whole rental. On the whole, this is the most' equitable construction of which the agreement is susceptible.
The defendant has paid more than appears to be due for rental during the last year that he took water.
Plaintiff nonsuit.