The complainant is the owner of the land alleged to.be flowed, and the respondents are the owners of a mill and dam erected on the land and privilege below the complainant’s land. The flowing, as alleged, is admitted *427by the respondents, and they justify under deeds from Joshua Wait, and Joshua and John Wait, from whom also the complainant deduces his title ; and the rights of the respective parties are to be determined by the construction of the deeds under which the respondents claim the right to flow.
The first deed of Joshua Wait, bearing date January Is; 1817, was made to Asa Goodell and others who were the owners of a mill privilege on the land lying on the river above Wait’s land. After releasing all claims for damages in consequence of their opening a canal through his land to let off the water from their mill, and for occupying it, he released and quitclaimed to them a privilege and free liberty for them, the said Goodell and others, their heirs and assigns, to drain and carry off the water from their said factory, in the same quantity, and in the same manner, which they had theretofore done, and then did, and not otherwise, through his land, by the way of the said canal, without obstruction, hindrance or molestation. Afterwards, David Wilkinson and others, having purchased of David P. Chase a piece of land and a mill privilege on the river below Wait’s land, wished to use it; but, in erecting a dam for the purpose, the water would be thrown back upon the Wait land; and they therefore purchased of Joshua Wait, and of John Wait who had become an owner with Joshua, the right to flow on to their land. This right was to flow the Wait land, by erecting their dam of such height and dimensions as to set back the water on to the land, in such a way and manner as not to obstruct or interfere with the right which the Goodell Manufacturing Company had to drain and carry off the water from their factory through the land; and, in the language of the deed, it was meant and intended to grant, bargain and sell unto the said David Wilkinson and others, the right and liberty to use and occupy any of the grantors’ land, by flowing the same by a datr erected on the Wait farm, “ of sufficient height to flow back the river to the tail race or canal ” in which the water was then conveyed through the grantors’ land to the river, from the “woollen factory of Goodell and others, without interfering *428with over the right of the said Goodell Manufacturing Company to drain and convey the water from their said factory, as it was granted and sold to Asa Goodell and others.” And then there was a provision (which is set out at large in the hi 1 of exceptions) for the settlement of the damages so caused >y flowing the grantors’ lands.
This case depends upon the construction of the said deed of Joshua and John Wait to David Wilkinson and others, under whom the respondents claim. The respondents contend that, by the terms of that deed, they may flow to any height that does not interfere with the grant to Goodell and others to draw the water freely through the canal; and that the words, which mention the tail race or canal, are words of description merely, and do not limit the height to which the respondents may flow.
In construing this deed, the whole clause containing the grant is to be taken together; and thus considering it, we are of opinion that it is not a right to flow to any height that will not obstruct or interfere with the right granted to Goodell and others, but that it is a definite grant, and is limited precisely to the tail race or canal from the Goodell mills, and that it does not extend beyond that, though it might not interfere with the prior grant.
The object of the grantors was, evidently, to prevent dispute in relation to the respective rights granted to the different parties; and to accomplish this, the right to raise the water is restricted to the mouth of the tail race or canal; and going no further than that, no interference could arise — the rights of the Goodell Company not being affected, and the new created rights being defined.
It is not important to determine whether the Waits themselves could flow the water above the mouth of the canal. The question in this case is this : Was such a grant made to Wilkinson and others ? And we are of opinion that it was not.
This construction given to the deed is strengthened by the provision contained in it respecting the compensation to be *429made for the damages arising from flowing the land, which were to be settled by Mr. Sibley, or, in case of his not serving, by three discreet persons to be agreed upon by the parties. We may presume that this claim was settled in some way, at or near the time, or that the right to damages was waived.
It does not appear, in the facts before us, at what time the respondents raised their dam. Supposing it has been done within three years, (Rev. Sts. c. 116, § 4,) and in consequence of it the flowing has been increased to the height of seventeen inches; then it would seem that the complainant, or those under whom he claims, have received no compensation for such flowing. But however that may be, as the right was not granted by the deed under which the respondents claim, the exceptions are overruled, and the cause is remitted to the court of common pleas for further proceedings.