We are all of opinion that the right instructions were given to the jury. The single question in the case was, whether Francis Harris gave to his daughter Hannah, and to her heirs and assigns, a right to overflow, without paying damages, any more of the land, which he had, by a pre*206vious clause in his will, given to his daughter Abigail, and to her heirs and assigns, than was overflowed when the will was made. So far as the complainant’s land was then overflowed, her counsel admit that the respondent may still overflow it, without liability to pay damages: that the devise of the blacksmith shop to Hannah gave her a right to raise the water, as theretofore raised, for the working of the trip-hammer; and that the land devised to Abigail was subject to that right. And so the law probably is. See Swansborough v. Coventry, 9 Bing. 305; Canham v. Fisk, 2 Crompt. & Jerv. 126; Pettee v. Hawes, 13 Pick. 323; Hathorn v. Stinson, 1 Fairf. 224; Rackley v. Sprague, 5 Shepley, 281.
The devise to Hannah was of land bounded on the brook, “together with the privilege of the stream, so as not to damage the mills” which the testator owned below the land devised to her. The devise to Abigail (the complainant’s mother) was of land bounded on the same brook, above the land devised to Hannah, and a part of it was overflowed, by means of a dam, at the time when the devise was made. Did the testator mean to subject this land to such other servitude as Hannah or her assigns might thereafter be pleased or be able to impose, by means of a dam ?
The position taken by the respondent’s counsel was this: That the devise to Hannah is enlarged, by giving to her an easement, created de novo, the extent of which easement is the right of using the entire power and capacity of the water of the brook, by artificial means, for its appropriate purposes; subject only to the limitation that, she should not damage the lower mills which the testator owned; that the limitation, which is expressed, excludes any implied limitation; and that, by the construction, given by the judge at the trial, the words, “ together with the privilege of the stream,” are rendered inoperative.
But we cannot perceive any legal ground for holding that an easement, in the land devised to Abigail, was created de novo, by the testator’s devise to Hannah. When the devise was made, the testator owned not only a blacksmith shop in which a trip-hammer was worked by water raised by a dam near the shop, but also a grist-mill and other mills below. He first devised *207to Abigail a house, and two acres of land bounded partly on the brook. No condition or restriction was annexed to this devise. He next devised to Hannah a house and certain land, and also the blacksmith shop and half an acre adjoining it, “ together with the privilege of the stream, so as not to damage the mills ” below the shop. It seems to us, that if he had intended to subject Abigail’s land to the easement now claimed, he would naturally have done so, in express terms, either in the devise to her, or in the devise to Hannah. But he did not. And the respondent is obliged to rely, in support of his claim, solely on the implication arising, as he contends, from the devise to Hannah of “ the privilege of the stream.” But, in our opinion, the testator, by this devise to Hannah, intended rather to restrict her right to the use of the stream, than to enlarge that right. His purpose was, we think, not to give her a right to injure her sister’s land above, but to confine her to such a use of the stream as should not injure the mills below, which were devised to her brother.
We do not question the power of a testator to create, bjwill, an easement, for the benefit of one of his devisees, in the land which he devises to another. He may devise two tenements, and make one of them dominant and the other servient. But he can do this only by using such terms as, on their face, clearly evince such an intention, or such as necessarily imply it. No such intention is clearly evinced by, nor necessarily to be implied from, the terms of Francis Harris’s will. All the purposes, which his will manifests, can be effected, without subjecting the complainant to the claim of the respondent. The testator gave his lower mills to his son; the blacksmith shop to Hannah; and land above the shop to Abigail. The mills given to the son were doubtless of more value and importance, in the testator’s estimate, than the shop given to Hannah. The testator had owned them all, and had regulated the use of the water, at each, according to his own pleasure. But, as the ownership of the mills and of the shop was to be in different persons, after his decease, he meant to provide that the use of the water, at the shop above, should not be such as to injure the mills below. Exceptions overruled.