By the Court,
Nelson, J.The only question presented, involving the merits of this case, is whether the judgment in partition between Gouverneur and Mynderse in any way affected the privileges belonging to and enjoyed by the occupants of the mill now owned by the defendants, and which had been so used for some twenty-five years. When the wing dam was originally erected, both the mill sites now belonging to the parties in controversy, were owned by the same person or persons, and of course they could fix its height at discretion. It had been used at a given height by the parties down to the time when partition was made. Beyond all *208dispute, if the original owners before partition had sold the lower mills and privileges thereunto belonging, describing the premises according to the judgment of partition, the purchaser would have acquired a right to the enjoyment of them undiminished. The grantors would not have been permitted to contest the right (which they had thus sold and conveyed for value,) to set water back over the boundary line, if the dam existing at the time of the sale produced that effect. The whole value of the mill site might depend upon the enjoyment of such privilege; and the pretence against the use of it would be just as well founded as if it was of less consequence. The case in its present aspect is equally decisive for the defendants. The commissioners, in making partition of these mills, together with their privileges, we are to presume, intended to set them apart to the respective tenants, with the appurtenances as then belonging to them, and as they were then enjoyed ; otherwise they would have merely allotted to the several tenants specific portions of the property without reference to the water-rights and privileges belonging to the portions of the property thus assigned, and their intent to do so would have appeared in the record of judgment. Nothing of this kind appears ; on the contrary, the language used allots to each these privileges in full force, by the most apt and skilful terms that could be employed, and the judgment of the court confirms the doings of the commissioners.
I consider the right of the defendants to keep up their dam at the height at which it has been so long maintained, as founded upon a title equivalent to an express grant by persons competent to make it. It is therefore unimportant to examine the question how far it could be sustained by the doctrine of prescription.
New trial denied.