This case is jclearly within the equity jurisdiction of this court. Bemis v. Upham, 13 Pick. 170. Ballou v Hopkinton, 4 Gray, 328. It has been heard before a single judge, and an issue to try certain questions of fact has been directed by him. It was within his discretion to decide on the motion of the plaintiff for an issue to the jury; and his order for such issue is not open to exception. Ward v. Hill, 4 Gray, 593.
The questions raised at the trial concerning the respective rights of the parties to the mill privileges in controversy depend entirely on the construction of cértain deeds.
1. The entire right to the use of the water of the stream was originally vested in Sylvanus Rice, who in the year 1788 conveyed all his title thereto to Jonathan Hawks. In this deed the privilege was described “ as a grist mill and saw mill, and the privilege of the stream, with liberty to use and improve said stream for mills of all sorts.” This ancient right to the use of the water in the stream was, at the time of this grant, well described and designated by the use to which it was then appropriated. The grist mill and, saw mill, being the only mills then erected, with the dam across the brook necessary to raise the head of water, comprehended the entire privilege. By the conveyance therefore of these two mills, the entire mill privileges passed to the grantee ; and when either of the two was separately conveyed, such proportion of the whole right, in the brook passed by the grant, as the water used to drive the mill conveyed bore to that used by the other mill. If, for example, the grist mill .required as much water as the saw mill, a grant of the former would convey one half of the entire .privilege; and so in a greater or less proportion, according to the amount of water necessary to carry the mill.
It follows, that when the grist mill was conveyed by Simeon *627Crittenden, who had acquired a title to it through mesne conveyances from Jonathan Hawks, by his deed to David Crittenden of March 16th 1816, the grant comprehended all the water in the brook except the saw mill privilege. This right is by mesne conveyances now vested in the plaintiff, subject, however to be diminished by such right of water as shall be found to have been conveyed to the defendants by the deeds under which they claim title. The right of the plaintiff includes the upper or reservoir dam, which was proved at the trial to have been occupied and used for more than fifty years as a reservoir dam for the grist mill below.
The argument of the defendants’ counsel upon the construction of the deed from Simeon Crittenden to David Crittenden of March 16th 1816, and also of the deeds of David Crittenden and David B. Crittenden, under which the plaintiff claims title, is founded on the fallacy that the conveyance of the grist mill passed nothing but the mill itself, and the water actually necessary to drive it. This would be so, if the title of the plaintiff rested on a modern grant of a grist mill, situated on a stream where there were several mills of different kinds, all drawing from the same level, and where there was only sufficient water to supply the power necessary to drive each mill.
But the argument has no application to a case like the present, • where the right of a party is traced back to an ancient privilege, embracing the entire water in a stream, described and designated by the kind of mills to which it was originally appropriated. In such case, the conveyance of a grist mill or saw mill, eo nomine, passes the entire proportion or share of the water in the river belonging to such mill. The plaintiff therefore, having by his deeds a title to the ancient grist mill, is the owner of so much of the water power and privileges in the stream as do not belong to the ancient saw mill, which, at the time of the trial, was vested in Bishop, by deeds dated in the year 1854; and also subject' to such deduction or diminution, if any, as ought to be made therefrom by reason of the grant of a water power, made by the owners of the original saw mill and grist mill privileges, under which the defendants now claim title.
*6282. Their right is derived from deeds made by Silas Hawks and others to William Patch and Eugene Field, dated July-21st 1834. The grantors in these deeds undertook thereby to carve out a privilege lying between the upper or reservoir dam and the grist mill dam. The title of the defendants depends on the nature and extent of the privilege thus granted. It is a grant of a privilege described as follows: “ Commencing at a certain permanent rock westerly of the centre of said brook, on which the upper dam belonging to the grist mill now stands; thence running on said brook to the dam which is occupied for supplying water to the grist mill, with the privilege of erecting buildings on the adjacent land to us belonging, for any purpose except for a grist mill and saw mill, for the occupancy and úse of any other machinery carried by water power; reserving therefrom the right of taking water from the said upper dam to ourselves, also reserving to ourselves the land on said brook one hundred feet below said permanent rock.”
The privilege thus conveyed was clearly limited by the “ permanent rock ” above and the grist mill dam below. No right was'given to raise water above the rock. On the contrary, we think it was excluded by necessary implication. The rock is not only the upper boundary of their privilege, but the intent of the grantors to limit the right of the grantees by it is shown by the terms of the reservation. The object of the grantors was not to impair the power created by the upper dam. By reserving in the deed the use of the water raised by this dam to themselves, they intended to restrict the grant, so that the privilege conveyed should not disturb the flow of the water below the dam beyond the point fixed by the rock. The reservation could have no other object. The dam and the water raised by it belonged to the grantors. No part of it was included in the conveyance to Patch and others. It was not therefore a reservation, in the strict sense of the word, out of the thing granted; but was inserted for the purpose of excluding any right which might, under the general words of the grant, be claimed to flow back on the dam above the rock and thereby diminish the fall of the water. This construction is strengthened by the addi*629tional reservation of one hundred feet of the bank of the stream below the permanent rock. This was, in the strict sense of the word, a reservation of that which would otherwise have passed to the grantees under the previous terms of the grant, and was doubtless intended to save to the grantors a portion of the bank of the brook immediately below the dam, on which they might erect mills for the purpose of there using the water power created by the upper dam, and which they had intended to reserve by the previous clause in the deed.
3. We sée no evidence in the case from which any abandonment of the right of water originally belonging to Jonathan Hawks can be inferred. The conveyance of Rice to White, relied on by the defendants to prove such abandonment, as well as that of Hawks to Urbane Hitchcock, under which the defendants claim title, were grants of land only on the stream, without any right to the use of the water. The mills and privileges were included in other conveyances, as appurtenances to other land, and passed by separate, and independent titles under deeds previously made.
4. The parol evidence admitted at the trial as to the understanding of the parties concerning the extent of the right conveyed to Patch and others by the deed of July 1834, does not appear to have been objected to at the trial. But its admission was wholly immaterial, because the legal interpretation of the deed, unaided by extrinsic proof, conforms to the parol evidence of the intent of the parties in making and receiving the grant.
Exceptions overruled.