This is an action upon the case for diverting a watercourse. It appears by the report of the judge, before whom the trial was had, that the plaintiff is the owner of land on both sides of a natural stream, upon which he has a dam and mill; that the defendants had made a. canal entirely around the plaintiff’s premises, from the natural bed of the stream above to the natural bed of the stream below, and thus wholly diverted a portion of the volume of water from the plaintiff’s, mill. The defendants proposed to justify, by showing that the plaintiff claimed under a deed, by which he was restricted in the height to which he should raise the water; that in fact he had raised his dam, and exceeded such restriction; and that the defendants’ side canal was so constructed, that it would not reduce the height of water in the plaintiff’s pond below the level to which he was restricted.
It appeared that the plaintiff claimed through Robert Stedman, xvho held under a deed from Clark Dorman. In Dorman’s deed to Stedman, after a description which includes the bed of the stream, and land on-both sides of the stream, there is found this clause: “ With the privilege of flowing bacx the water, by a dam, on the premises, within txvo rods of where the water is now taken out of West Pond; also the privilege of using the xvater, on said premises, for all *509kinds of machinery, except for a saw mill and clothier’s works for customers; and also the privilege of drawing water from said West Pond, by raising the gate, for the benefit of the machinery that may be erected on said premises, under the above exception or reserve. And further I ” (Dorman, the grantor) “reserve to myself, my heirs and assigns, the privilege of raising the gate at said West Pond, at all times, to draw water for the benefit of my machinery below.”
At the time when this deed was executed, Dorman, the grantor, owned a mill pond and mill below the granted premises, on the same stream, with a saw mill and clothier’s works, and also the land above the premises, to West Pond, and the land next adjoining the premises, on the east. Dorman afterwards sold and conveyed to the defendant Wells the land above and on the east side of the plaintiff’s premises, but not the pond, nor the mills and works, below the plaintiff’s.
It is very questionable whether, if the plaintiff has exceeded his right, and if the defendants are thereby injured, they can seek a remedy by making an artificial cut on their own land, and thus diverting the water from its natural course. Generally, a party, through whose land a natural watercourse passes, has a right to the use of it in its passage, súbject to a reasonable use by coterminous proprietors, but without being wholly diverted. But without placing the decision on this ground, we have thought it expedient, in the first instance, to inquire what are the rights of these parties, in this state of their respective titles.
It seems to us very clear, that as Dorman, the grantor, was owner of mills and clothier’s works below the granted premises, on the same stream, all the recited reservations in the above deed, which are obviously designed for the service and benefit of those mills, were reserved to the grantor and his assigns, as owners of such mills; and of consequence, the defendants, not having purchased those mills of Dorman, have no right or interest in those reservations, and cannot claim to set them up for any purpose. The owner of the mills below *510might release them without doing any injury to the defendants. Though they purchased other land of Dorman, they were strangers to these reservations, and cannot justify acts which would be otherwise wrongful in respect to them. This consideration applies to all these reservations which relate to the use of the lower premises for a saw mill and clothier’s works for customers, and to drawing water from West Pond, and raising the gate for that purpose. Indeed, it extends to all the express reservations out of the grant. But the grantor did, at the time, own land above the granted premises, which has come, by mesne conveyances, to the defendants; and the question is, whether their rights are affected by the clause, “ with the privilege of flowing back, by a dam on the premises, within two rods,” &e. The defendants contend that this was an absolute restriction, upon the grantee and his assigns, from flowing the land of the grantor and his assigns, beyond the line limited, upon which they, as his grantees and assigns, have a right to insist.
The general rule is, that a grant of land in fee carries all the rights of ownership, and its incidents, unless restrained by express words or necessary implication. Here there are no negative words, nor any express restrictions. The right to build a dam on the land granted would have existed, without these words, as incident to ownership, and the right of flowing all the land granted would pass, without any words, as in like manner incident to ownership. But we understand that the limit, to which the right to flow was granted, was beyond the limits of the granted premises, and on the grant- or’s own land. Here there was something for this grant to operate upon; an easement for flowing, to a certain extent, in the grantor’s own land. This would give a full right to the grantee to use the grantor’s land; a privilege not depending on the mill acts, and one, therefore, which the grantee and his successors could enjoy without payment of damages. But we think this express and affirmative grant, without negative words, did not take away or limit the right, legally incident to the ownership of land, through which a stream of water *511passes, to erect a dam on his own land, and raise a head of water for the working of mills, which may, to some extent, flow the lands of another, under the authority and upon the terms provided by the mill acts.
The court are therefore of opinion, that if the plaintiff has increased the height of his dam, for the use of his mills, interfering with no mill above, although he has thereby flowed some land of the defendants, he had a right to do so, under the mill acts; that the defendants had no right to divert and draw off the pond thus raised, by a canal on their own land; and that their remedy must be sought under the mill acts.
Defendants defaulted, and damages to be determined by an assessor.