The court are of opinion that the facts do not show that the land conveyed with warranty was charged with any incumbrance or service, by the parol-agreement of Seymour, made when the mill was built, that- he would not claim damages. Strictly speaking, the right given by the mill acts to the mill owner is not that of flowing, or making any other direct use of his neighbor’s land adjacent to the stream, above his own, but only to raise a dam on his own land, to a height sufficient to raise a suitable head of water, and to continue the same to his own best advantage, although the land of another is thereby flowed. We do not, however, mean to say that a right to keep up such head of water, without payment of damages, may not, under some circumstances, be an incumbrance on the land. Such a charge might be created by grant; but such a grant would be the grant of an easement, or interest in land, and could only be made by writing. Rev. Sts. c. 59, § 29. Whether the assessment of gross damages, and the payment of the same by the mill owner, would create such an incumbrance, it is not necessary to decide. No provision for the assessment of gross damages existed till 1830(, *467(St. 1829, c. 122,) after the mill in question was erected. It is manifest that, under the existing laws, Rev. Sts. c. 116, §§ 19-22, no such case can exist, until a complaint has been made in due form of law, and tried, and the jury have assessed a sum in gross, which would be a reasonable compensation for all damages to be occasioned by the use of such dam ; the complainant must, within three months, have elected to take such gross sum, and have entered such election on the record; and the mill owner, within three months more, must have paid it. Until this is done, the claim, under the statutes, can be for annual damages only.
The ground, upon which the case of Carter v. Seymour, 2 Met. 520, was decided, was, that nothing then appearing showed that any easement or privilege in favor of the mill owner had been created in or over the estate of Seymour. If there was no service due to the estate of the mill owner, there was none due from the estate of the land owner. If it was subject to no such service, it was under no incumbrance. The case proceeded on the ground that the act of the mill owner was the exercise of a statute right; that the right of Seymour was to demand a sum of money, as owner, for the time being, of the land flowed; that this was a mere personal right, which might be discharged or waived by parol; and that his personal right* both as against the original builder of the mill and his successor, was thus waived. But if the statute gives the right to each successive owner of the land flowed to claim annual damages, then Seymour’s grantee has that right. He is barred by nothing which Seymour has done. But it is said that it would be gross injustice, which the law will not warrant, after Seymour encouraged Jones to build the mill, and waived damages for flowing, because the mill would be of benefit to his estate, if Seymour’s successor can now claim damage of the mill owner. It may be very unjust for Seymour’s grantee to take the estate thus benefitted and to demand any damage. But the true answer is, that the agreement, if- it extended to future damages, could not bind the estate, because it was not in writing. An owner of land *468may have granted his neighbor a right of way by parol, and even on a valuable consideration, and the neighbor may have enjoyed it fifteen years ; it may be very unjust for the owner, or for his grantee, with knowledge of these facts, to repudiate the grant and cut off the way; yet if he will he may, because it a lex scripta est. The grantee of a right, privilege, or easement in land, must secure it in the manner the law provides ; otherwise, the law cannot guaranty it to him.
On the other question, whether the plaintiff, having recon veyed the estate to the defendant, in mortgage, with covenants in the same terms and coextensive with the defendant’s covenants with him, can maintain this action, before he has redeemed, the court give no opinion. See Haynes v. Stevens, 11 N. Hamp. 28.
New trial granted.