This is an action for breaking and entering the plaintiff’s close, and cutting down and carrying away the trees standing upon one part of it, and carting and depositing sand and dirt upon another part of it, and by the latter grievance diminishing the quantity of water to which the plaintiff was entitled for the use of his mill. Although the forms of action formerly adopted were abolished by the code, yet the substantial rules governing the rights of action, and their statement in the pleadings, must still generally prevail. Otherwise, except in a few instances specified in the code, we have none, and we have arrived at that state described in the maxim misero est servitus, ubi lex est vaga aut incerta. One of those rules, and certainly a very reasonable one, is that for the causes of action on which the plaintiff relies he must, in order to maintain his suit, show that the place upon which the wrongs are alleged to have been perpetrated, is for the purposes of the action, his close.
The plaintiff claims the land on which the trees were felled, and the earth was deposited, under a grant for all that certain stream and pond of water and saw-mill thereunto belonging situate on the west side of the Springfield road” in the town of Jamaica in the county of Queens, and bounded partly by a dam and -partly by the lands of the riparian owners. There is also *482a conveyance of a small tract of land adjoining the saw-mill (but which was.not the site of any of the alleged wrongs) “ with the privilege of raising the pond as high as is necessary for all uses and purposes of said mill.”
The plaintiff supposes that his grant conveyed to him in fee simple the land covered by the waters of the stream and pond. Ordinarily, a grant of water, under any designation, does not convey the land which it covers. In order to pass the title to the land, the word “ land,” or something equivalent to it, should be inserted in the conveyance. In the case of Rogers v. Jones, (1 Wend. 237,) the patent ivas for all the tract of land within certain boundaries which included the harbor of Oysterbay, and it was therefore very properly decided that the title to thq fundus of the waters passed to the grantee. In the case of Jackson v. Halstead, (5 Cowen 216,) it was held that a lease in fee of certain premises including a river did not pass the soil under the water, and the court cites with approbation a remark of Ld. Coke, (Co. Litt. 4 b,) “ that if a man grant aquam suam the soil shall not pass,” and also Comyn’s Digest, tit. Grant, E 5, as recognizing the same rule. There are terms, however, which designate both land and water, and by which the land will pass. Lord Coke says, in a passage cited by the plaintiff’s counsel, (Co. Litt. 5 a,) that “ stagnum, in English a pool, doth consist of water and land, and therefore by the name of stagnum, or a pool, the water and lands shall pass also. In the same manner gurges, a deep pit of water, a gors or golfe, consists of water and land, and therefore by the grant thereof by that name the soil doth pass.” The reasons assigned by the learned commentator would seem to be equally applicable to a river or a pond, for it is difficult to conceive of either without a bottom to it; still the exclusion of both from the same category has been definitely settled. The - boundaries specified in the plaintiff’s deed are of the waters only and not as the limits of the lands of the adjoining owners. That would seem to result from something like necessity, as the margin of the pond must frequently change, from natural causes, and in this instance its extent might be increased by the plaintiff under the privilege express*483ly granted by his deed: I am strongly inclined to think that in grants for milling purposes the intent of the parties is generally to limit the interests conveyed to the use of the water, and of the land which it covers, so far as the same may be necessary for the operations of the indicated employment. They do not, ordinarily, design that if the mill should fail and the pond should entirely subside, the mill-owners should be entitled to the land once covered by the pond, with its indefinite and meandering boundaries. The principle, which I suppose has been fully settled by authority, would seem, therefore, very properly to effectuate the intentions of the parties interested. The mill-holders have the use of the waters so long as they choose to employ them for the designated purposes, and the land-holders retain the right to enjoy their property in any manner which shall not prejudice the exercise of the privileges, which they have conveyed to others.
The plaintiff did not prove any title to the trees which were cut, or any privilege extending over the land on which they stood, except to overflow it with his pond, if that should become necessary for the purposes of his mill. One of his own witnesses testified that it was above where the pond stopped that the trees were cut off. As to that alleged trespass there- was therefore an entire failure of any proof to sustain the action.
The defendant, however, perpetrated a wrong in filling up a portion of the pond; especially as he thereby covered up some of the springs. Although the plaintiff’s witness who alone testified as to the effect of this operation, said that he “ could not discover, by his eye, that the filling in lessened the quantity of water,” and that he “ did not observe that there was less water, in using the mill, after filling in,” yet he would have had a right to submit the question whether he was not entitled to some (possibly nominal) damages to the jury, had his action been rightly conceived. But he had based it upon a wrong foundation. His complaint, as to that, was for breaking and entering his close and carting and dépositing sand upon it, thereby lessening the quantity of water to which he was entitled. The diminution of the quantity of water was set forth as the conso*484quence of an illegal act; and as the cause as assigned failed, that was fatal to the alleged elfect.
[Dutchess General Term, April 8, 1856.Upon the whole the nonsuit seems to have been right, and the motion for a new trial should be denied.
Rockwell, J., concurred.
Brown, J., dissented.
New trial denied.
Brown, S. B. Strong and Rockwell, Justices.]