The opinion of the court was delivered by
Rogers, J.Who, after having stated the substance of the declaration and the plea, proceeded as follows:
The plaintiffs having examined several witnesses in support of the issue, offered to ask a witness whether the water was corrupted and unwholesome; to prove the number of families who depended on this water for domestic purposes; that it was corrupted, so that it could not be used, and that the water was injured for purposes of distillation. The testimony was overruled by the court, and this forms the plaintiffs’ first exception, and in this is involved the whole question in the cause. The testimony was overruled, as I conceive, in direct opposition to the case of Crotzer v. Russell, 9 Serg. & Rawle, 82, and Moore v. Houston, 3 Serg. & Rawle, 175. ’ The plaintiff has a right to support his cause of action, by proof of the facts stated in the declaration, and this can only be prevented by a demurrer, which admits the truth of facts, as set forth. The defence, if any he had, whether arising upon license or otherwise, will properly avail the defendant, when the whole case is before the court and jury, by a direction on the law, arising on the facts. In Moore v. Houston, 3 Serg. & Rawle, 175, Chief Justice Tilghmaít says, “If the question were simply whether the judgment of the court of Common Pleas should be reversed or affirmed, there would be but little difficulty in deciding it. If any of the rejected testimony-was competent, the .judgment cannot stand. And without doubt, part of it was competent, because it was in direct proof of the defendant’s plea, and therefore admissible, whether it was matter sufficient in law to bar the plaintiff’s action or not. If the plaintiff thought it insufficient to bar him, he might have demurred; but having joined issue, he cannot prevent that from going to the jury, which tends to prove the issue, on the part of the defendant. As, however, this is a motion for a new trial, we would not reverse the judgment of the Circuit Court if the testimony, when admitted, would not give the plaintiff a cause of *269action, and this will render it necessary to consider the law, arising as well on the evidence which was rejected, as on that which was admitted by the court.
It is a principle of the common law, that the erection of any thing in the upper part of a stream of water, which poisons, corrupts, or renders it offensive and unwholesome, is actionable. And this principle not only stands with reason, but it is supported by unquestionable authority ancient and modern. It has long since been adjudged, that he, who has a fishery, may maintain an action against a person for erecting a dye-house. 9 Rep. 59. Co. Litt. 200. b. Angell on Water Courses, 59. Appendix, 17. Bealey v. Shaw & al. And if a glover set up a lime-pit, for calf and sheep-skins, so near a water-course, that the lime-pit corrupts it, an action lies. Angell on Water courses, 60, and the case there cited. 13 Hen. 2, b. 6. The maxim is, sic utere tuo utnelcedas alienum. These positions are recognized by all the writers on the common law, nor have they ever been disputed or denied, in any adjudged case, so far as my researches have extended. The erection of a tan-yard comes within the operation of the same principle, provided it has the effect °f which the plaintiffs complain, corrupting and rendering unwholesome, the water in the stream below, used either for distillation, or for culinary or domestic purposes. .The general rule of law is, that every man has a right to have the 'advantage of a flow of wafer, in his own land, without diminution or alteration in quantity or quality. ' Nor are we to be understood as saying, that there can be no diminution or alteration whatever,.as that would be denying a valuable use of the water. The use of it must be such, as not to be injurious to the other proprietors. Each riparian owner has a right to a reasonable use of the.stream, which, of course, will be judged with a regard to public convenience, and the general good. It has been said, that this doctrine may prove injurious to the manufacturing establishments which are rising so rapidly in this country. I domot think so, but if it does, that is no reason why private rights should be infringed, although it may be a strong reason for legislative interference, in providing a mode by which compensation may be allowed to those, whose rights may be affected by an establishment in which the public may be interested.
The limitation of these principles is, either where the appropriation has been for a period of twenty years, which the law deems a presumption of right, or it arises from contract.
I have examined the testimony, with a view to the first question, and there is certainly nothing in evidence which would justify the jury in presuming a grant, so that our attention must be directed to the contract, which the defendant alleges, authorizes him to throw in tan and ross, and to empty the contents of the vats, in the manner stated in the plaintiffs’ declaration.
William M'Call, under whom the plaintiffs claim, and who was *270the proprietor of the property, made a lease of the premises, on the 6th of December, 1821, to Anthony M‘Coy, on which he relies for his justification. From the lease, it would seem that the defendant enjoyed the premises under a parol contract, and the defendant says, the lease was made with a special reference to the manner in which he was accustomed to use the water, and discharge the contents of the tan-yard. Had the defendant sustained this allegation by clear, unequivocal proof, it would have been entitled to great weight in the construction of the lease, as it would have been some evidence of the meaning attached to the contract by the parties themselves. But in this, the defendant has failed. Occasionally throwing in tan, which caused no essential injury, perhaps without the knowledge or observation of M‘Catt, could confer no right, nor is it entitled to much weight in the construction of the lease. The defendant contends for the right to return the water, mixed with whatever greasy, glutinous, unwholesome or poisonous matter it may have acquired in undergoing the process of manufacture, and that the quantity, not the quality of the water, was in the contemplation of the parties to the contract. I cannot agree to this construction. It appears very improbable that the parties could have been so absurd, as not only to permit, but to bind M‘Coy to return the water into the race, after it had been polluted by intermixture with other substances of a poisonous or unwholesome nature. M‘Coy contracts for the use of so much of the water of Martin’s creek, as should be needful and proper for the supply of-the tan-yard, and for working a pump therein, and for grinding bark at the mill, with one stone, and no more, and for no other use or purpose whatsoever. And to that end he is authorized to lead and conduct the water of the said creek, out of a dam erected for that purpose, through and along a water-course already constructed, &c. a quantity sufficient for the uses and purposes aforesaid, and in no larger or greater quantity, and in no other or different course or direction, and for no other use or purpose whatsoever : Provided, that all the water which shall be conducted,' as aforesaid, to the mill and yard, over and above the quantity which shall be necessarily used and consumed in conducting the business, shall from thence be conducted, without unnecessary and unavoidable loss, diminution, or waste, and returned into the said creek, by a sufficient tail-race, at and above the present mill-dam of the said M‘CaU.
The obvious intention was to-prevent any unnecessary waste of water, and for this purpose, care is taken to return the surplus water to the creek from which it was taken, so as to supply the mill of M‘Call, which was situated on the stream below. It is the water which is not used or-consumed, which M‘Coy stipulates shall be returned to the stream. This contract, like every other, must receive a reasonable construction, and there can be nothing more certain than that they intended what they have clearly expressed, to secure to M‘Call the surplus water, not necessary in conducting the business *271in which M‘Coy was then engaged. This is a stipulation, which frequently forms part of a’contract of this nature, and it is inconceivable to me, that either party could intend, that water, mixed, partly consumed, and of a deleterious and poisonous nature, should be conducted, without unnecessary and unavoidable loss, diminution or waste, and returned into the creek, which is the language used by the contracting parties in this case. The lease grants liberty to M'Coy to take and" lead the water of the creek, or so much as shall be necessary for Coy’s purposes, binding him to lead and discharge the surplus water by the tail-race which had already been constructed.
The defendant further contends, that he is at liberty to make this disposition of the tan, and other matter of the tan-yard, as a right appurtenant to the grant, and for this relies upon Strickler v. Todd, 10 Serg. & Rawle, 69, and 3 Saund. 259, and upon the well-established principle, that whatever is necessary to a grant, passes without express words, as an incident. But as I understand the rule, it must be necessary to the enjoyment of the thing demised, not merely convenient; and there is a great difference between what is necessary and what is convenient. It would, doubtless, be extremely convenient, if M‘Coy possessed the right asserted by his counsel, of emptying the contents of his tan-yard in the stream below, or disposing of his surplus tan on the land adjoining his yard, but that this is necessary, may well be doubted. There are various ways of disposing of the surplus matter of his tan-vard, besides the one adopted, and it was for him to consider this, at the time of the lease. The presumption is, he knew the quantity of land which he would require for the successful prosecution of his business, and if he did not choose to purchase more, it is surely not the fault of M‘ Call, or those who claim under him.
The court are of opinion that the plaintiffs have a cause of action, and that a new trial should be awarded.
New trial awarded.