By the Court.—-
BROWN, C. J.,delivering the opinion.
The controlling question in the case is, had the defendants the right to use the water in the stream, as they did use it, for the purpose of running their mill, located a short distance above the furnace of the plaintiffs. Judge Parrott, who presided on the trial, left it to the jury to determine whether the use and detention of the water, by the defendants, were reason*169able and necessary, under the circumstances of the case made by the evidence. We see no error in this.
In Washburn’s Easements and Servitudes, (side page 267,) the rule is laid down as follows: “The question of a reasonable use of the water by the mill-owner above, depending as it must, upon the size of the stream, as well as the business to which it is subservient; and on the every-varying circumstances of each particular case, must be determined by the jury and not .by the Court.” It seems to us that a correct rule, as to the use of the water by the owner of a mill on a stream, is found on side page 253 of the same book, in the following language: “But in doing so, he must use the water in a reasonable and proper manner, in propelling and operating a mill, suited and adapted in its magnitude to the size and capacity of the stream and the quantity of water flowing therein. Nor could he detain the water an unreasonable .length of time, nor discharge it in such excessive quantity that it would run to waste. He must use the water in such a way and 'manner that every riparian proprietor at points further down the stream, will have the use and enjoyment of it, substantially, according to its natural flow, subject, however, to such disturbance and interruption as are necessary and unavoidable, in and by the reasonable and proper use of it *for the operating of a mill of suitable magnitude, adapted and appropriate to the size and capacity of the stream and quantity of water flowing therein.”
In the case of Hetrick v. Deuchler, 6 Pennsylvania Reports, 32, the plaintiff’s works were an ancient grist-mill, the defendant’s a modern saw-mill, on the same stream. In operating his mill, the defendant sometimes detained the water from three to five days or more, and, besides using the water for driving his mill, applied it to irrigating his land. Besides this, he at times let out so much water from his own as to flow the plaintiff’s mill. The Court were urged to rule that such a detention must necessarily be objectionable, as being a violation of the plaintiff’s rights. But they declined so to do, and submitted the question to the jury, whether it was a reasonable detention of the water or not. If he detained it no longer than was necessary for his proper enjoyment of it, the plaintiff cannot recover, unless, as the Court added in their instructions, the defendant detained the water vexatiously or wantonly. And the whole Court, in commenting upon and approving those instructions, refers as a test of what may be done, to the “reasonableness of the detention depending, as' it must, on the nature and size of the stream, as well as the business to which it is subservient, and on the ever-varying circumstances of each particular case:” See, also, on this point, Mabie v. Matteson, 17 Wis., 1; Springfield v. Harris, 4 Allen, 496. A large proportion of the cases, *170where conflicting rights are set up by such mill-owners to use of water, will be found to have been determined by the application of this broad rule, of what is a reasonable use, in view of the circumstances of each particular case: See Wash. E. and S., side page, 266, and a number of cases there cited.
Taking this to be the correct rule, and applying it to the evidence in this case, we are satisfied these plaintiffs had no cause of action. We think the defendants made only such reasonable use of the water under the circumstances of this case, as they had the legal right to make. The water was low in the stream, and the furnace was being run, as is shown, contrary to the practice of judicious operators, on the same stream, *under like circumstances, at a time when true economy required that it be stopped and that the time be appropriated to laying in stock for use, till the rise in the stream, resulting from the fall rains, after which there was sufficient water for all.
At any rate, the defendants who first got control of the water when it was too weak to supply all, had the right to detain it a reasonable time for necessary use at their mill. The Court submitted the question of the reasonableness or unreasonableness of the use made of -the water, by the defendants, to the jury, and they found in favor of the defendants. And, after a careful review of the testimony given in on the trial, we are satisfied they found correctly. Section 2205 of the Revised Code declares that, “the owner of a stream not navigable, is entitled to the same exclusive possession thereof as he has of any other part of his land, and the Legislature has no power to compel or interfere with him in its lawful use for the benefit of those above or below him on the stream, except to restrain nuisances.” Construing this section with sections 2201 and 2967, we think • they do not change the common law rule already laid down. They secure to the owner of the land over which the stream passes the legal use of it, for the purpose of propelling such machinery as is suited to the size and capacity of the stream-; provided, the water is not obstructed for an unreasonable time, and is not diverted from its natural channel when it passes to the lands of the next proprietor.
2. But it is claimed that the evidence showed that there was a verbal contract or understanding, between Pool, one of the plaintiffs, and Dr. Lewis, who built the mill, and was a partner in the furnace when built, and for several years afterwards, that the water should never be obstructed at the mill, but should flow constantly in the channel of the stream to the furnace. It is not pretended that this license or contract, or whatever it may have been, was in writing. And the Court below ruled that the plaintiffs could not have the benefit of it, because the right claimed to have been conveyed *171by it, which was a right in the plaintiffs to prohibit the detention *of the water at the mill for such reasonable time as the law would otherwise allow, was an interest in land which could only be conveyed by writing: See Code, sec. 1940. While we are not prepared to say the Court committed error in this ruling, we do not deem it necessary to decide the question. The evidence shows . that Pool, the plaintiff, was present when the land upon which the mill is located was sold at administrator’s sale, as the property of Dr. Lewis, and that he gave the bidders no notice of this parol license or contract, but permitted them to invest their money in the said property, without knowledge of the right he now seeks to set up, which existed, if at all, only in parol. Under this state of facts, we hold that Pool was estopped from afterwards setting up this parol, license or contract, to the injury of the purchasers. And the parties are left just •where the law, governing in such cases, without license or contract, leaves them.
There were numerous charges asked, and exceptions to the charge as given, by the Court, and his refusals to charge, upon which we are asked to pass judgment. But as the points already decided must, in our opinion, control -and dispose of this litigation, we deem it unnecessary to do so.
Judgment affirmed.