The judge before whom this action was tried found, among other things, that in certain seasons of the year for the past three years the flow of the water was not sufficient, after supplying other mills, to drive the necessary machinery of the plaintiff’s with two hundred horse-power, and this because of the excessive use of water bjr defendants at their paper mill. The defendants excepted to the finding, and I am of the opinion that the exception was well taken. As I understand the testimony, there is no evidence to sustain the finding as to there not being at all times two hundred horse-power for plaintiff’s use. All the evidence upon this subject was given by the witness John F. Harris, who was sworn for the plaintiffs upon the trial. He testified that he had been connected with the blast furnace over fifteen years, that there was not an adequate supply of water at all times, a lack of water in the summer time and sometimes as late as the first of ¡November, and twice in different winters; but he does not state that there was not enough to furnish the plaintiffs with two hundred horse-power as found by the judge; nor does it appear but that the furnace may. have required a far greater power to operate it. If the plaintiffs had the two hundred horse-power then they enjoyed all that they were entitled to, their rights w;ere not infringed upon and no injury was sustained by them which entitled them to maintain and recover in this action. The question as to the quantity of water the defendants used was of no sort of importance so long as plaintiffs had their full share, and they were bound to make out affirmatively, as one of the issues in the case, that they did not have their full quota. It was not assumed on the trial that they did not have such share, and the case was not tried upon any *328such theory; ñor was it essential that the defendants should raise the question distinctly before the judge upon motion for a nonsuit, or to dismiss the complaint. It was one of the issues to be determined and it could properly be urged upon presentation of the whole case to the court, that there was a failure of evidence in this respect which would not warrant the finding stated. As the finding is without evidence to support it, or tending at all in that direction, it is plain that the judge erred, and as the action cannot be upheld without evidence to sustain such a finding, the absence-of such evidence is fatal to the judgment. The judge upon the trial also further held that the grant of 1853, being of a power sufficient for a purpose named, was without any mode of ascertaining the quantity being provided, or the head under which the water should be -used, or the size or kind of wheels on which the water should be applied; that 3,098 cubic feet of water per minute, discharged under sixteen feet head through the wheels in the paper mill, would produce sixty-five net powers; that the defendants were obtaining more than they were entitled to under the grant, and for every foot of fall in the water of the pond below a level with the top of the dam there should be an increase of quantity. The effect of these findings was to decide that the sixty-five net powers was the amount which the grant called for.
It was also found that between 1853 and 1867 that the wheel pit .was sunk at the defendant’s mill and the water wheels therein lowered some three feet, and the tail-race enlarged. It appears to be quite evident that the lowering of the wheel pit and of the wheels must necessarily have increased the power when the same quantity of water was applied, and it follows that the defendants would be entitled to the benefit of that increased power. Without considering what that increase would amount to, sufficient appears to show that the court was wrong in adopting the wheels in use at the time of the controversy as a basis of its decision, instead of those which were in use at the time when the deed was delivered under which the plaintiffs claim. The rule on this subject is laid down to be, that where a grant or reservation is made of water power sufficient to propel certain specified machinery, the grant is of a quantity of water which is reasonably necessary to carry on and operate such machinery at all seasons of the year, and in the state and condition in which such machinery exists at the time of the grant. Pratt v. Lamson, 2 Allen, 283, 284; Loverin v. Walker, 44 N. H. 489. The *329grant to the Fort Edward Paper Mill Company in 1853, under which the defendants claim and hold their mill privileges, conveyed to them the paper mill and the lot of land upon which it stood, “together with the right to draw water from the race or pond sufficient to propelling four three hundred-pound engines, with all the machinery necessary for making paper from the same, and the right to the preference for using water over all the mills and machinery now on the dam or race, or that may hereafter he put on, except,” etc. I think that when this conveyance was delivered the rights of the parties were fixed and could not be affected or impaired afterward by the use of improved wheels or by a change in the head or fall which operated them. The defendants were entitled to a certain amount of water at that time, and it matters not what improvements or changes may have been made to lessen the quantity of water necessary for the purposes named, they are still entitled, as against the plaintiffs, to the same quantity, and the measurement should be, not the power essential to run the defendant’s mill as it then was, but sufficient for the purpose as applied to the old mill and wheels as they actually existed at the time of the grant. Such would have been the true construction of the grant had the question arisen soon after it was made, while the old wheels and machinery were in operation, and there is no reason why the same rule should not apply because different wheels and a different fall of head had been adopted. It was entirely immaterial what changes had been made, so long as the right existed in the defendants, or what use they made of it, or whether they used it all, and it is quite evident that the judge was in error in the particulars named.
There are other important questions in the case, but as for the errors stated, a new trial must be granted, their examination is not required.
For the errors already noticed, the judgment and order for extra allowance must be reversed and a new trial granted, with costs to abide the event.
Judgment and order reversed, and new trial granted.