This is an action of tort, for digging a canal or watercourse across a private way of the plaintiff, and obstructing and preventing the use of it. The land is situated in Woburn, and was formerly the property of the Woburn Agricultural and Manufacturing Company. The land was laid out into lots, with mills standing upon a stream of water passing through it, all which are laid down on a plan recorded with Middlesex deeds, and referred to in both of the deeds from the trustees of said company, under which the parties respectively claim title. It is not easy to give a full and clear view of the localities; but perhaps it may be stated with sufficient accuracy for the decision of the present question.
It appears that Sweetser, under whom the plaintiff claims, and Bigelow, the defendant, obtained deeds of the trustees, of the same date, and that each deed refers distinctly to the same plan, which therefore is to be taken into consideration in ascertaining the rights of the respective grantees to their respective granted premises, and the appurtenances belonging to each.
It appears by the facts that at the time these deeds were executed most of the streets and ways laid down on said plan were not made, nor in a condition to be used as highways, nor was the way alleged to have been obstructed by the canal in fact built and fitted for use, though laid down on the plan as a street or highway. The mills, one of which was granted to the defendant, were then existing, and were laid out at the same time on the same plan.
It is a well settled rule of law, that the grant of a mill carnes with it, by necessary implication, the right to the use of the watercourse coming to the mill and furnishing power for working it, and also to the canal or raceway which carries the water from the mill, to the full extent of the grantor’s right and power so to grant them. Prescott v. White, 21 Pick. 341.
Upon these principles it appears to us that each of the grantees in these deeds had equal rights; the plaintiff had the right to pass along on the surface, on the parts laid down on the plan as ways, v ith all usual kinds of travel; and the defendant, to have *157the water flow off freely from his mills. The plaintiff's, however, was not an actual way built or in use, but was a right of way, and as such carried with it the right of fitting it for actual use; but the defendant was in the actual use of his raceway from the time of the grant. Could both of these rights be enjoyed together without interference? We think they could. The defendant had a right to a raceway sufficiently wide and deep to carry off the water from his mill. If the plaintiff could not use his right of way otherwise, he had a right to build a bridge over the raceway. The land travel could be carried over the stream, but the stream could not be carried over the way; it must retain its level. Necessity therefore would determine how both of these rights could coexist and both be beneficially used.
Then comes another rule, that he who enjoys the benefit of an easement in another’s soil must be at the expense of fitting, maintaining and repairing it. If therefore the plaintiff would enjoy the benefit of a way, either a footway or a way for carriages, over the defendant’s raceway, he must erect a suitable bridge over it.
It seems to us therefore, that the only question that could arise would be, whether in widening, walling up the sides, or otherwise fitting up his raceway for use, the defendant did it in an unreasonable manner, to the injury of the plaintiff’s right of way, and of his reasonable enjoyment of it. But this point was not taken, and the case was not left to the jury on that ground. On the contrary, the court ruled that, if the right of way had not been abandoned or extinguished, but still existed, the digging of an artificial watercourse or canal across it was an injury for which an action would lie, without regard to the consideration whether such canal was necessary to the reasonable and beneficial use of the defendant’s mill, or to the question whether it was reasonable in regard to place, width, depth, manner of con-st] action and other circumstances. It is true that in this verdict the plaintiff recovers nominal damages only. But it being settled that the canal is a violation of the plaintiff’s right, the next action for a continuance of the nuisance may give the plaintiff substantial damages, an<_ ultimately lead to a judgment fa» *158abating the nuisance by filling up the canal altogether, to the great injury, perhaps the ruin, of the defendant’s mill.
Exceptions sustained
A new trial was had in the superior court in Middlesex at December term 1860 before Brigham, J., who, after a verdict for the plaintiff for nominal damages, made a report to this court, upon which the case was argued by the same counsel in January 1862, and the substance of which appears in the opinion by
Hoar, J.When this case was before us at a former term, it was understood, from an imperfect statement of the facts in the bill of exceptions, and reference to a plan, that the obstruction to the plaintiff’s right of way, of which he complained, was caused by an enlargement of the canal or raceway leading from the defendant’s mill. This canal was laid down upon the plan. A new trial was ordered, upon grounds stated in the opinion prepared by the late chief justice, and which were applicable to the facts as they were then presented.
But upon the second trial in the superior court, it appeared, that at the time of the execution of the deeds under which the parties respectively derive their title, the water which supplied the defendant’s mill was taken to it from a canal by means of an underground penstock ; that the plaintiff’s right of way was across the land through which the penstock was carried; and that the obstruction to the right of way, for which the action was brought, consisted in changing this penstock into an open canal for the passage of the water, and piling up the earth, taken out in excavating the canal, by its side. These facts materially affect the rights of the parties, and make a different role of law applicable in determining them. The grant to the plaintiff of a way over the defendant’s land must be construed in reference to the facts existing at the time. And as the mode of conveying water to the defendant’s mill was then such as did not interfere in any manner with the way, and there is no intimation in the defendant’s deed of any contemplated change in the passage of the water, which would make the enjoyment of *159the right of way more expensive or less beneficial, we think the presiding judge ruled rightly, “ that the defendant had no right to convert said underground penstock, crossed by said way, into an open canal, so as to make impassable and obstruct said way for use by the plaintiff.”
As the defendant owned the land, he had of course a right to take the water through it in any manner most convenient to himself, provided he did not interfere with the right granted to the plaintiff. But, as far as the right to take and provide for the passage of the water modified the grant of the right of way, it obviously makes a great difference whether a new right of mating such a passage was granted, and unlimited except that it should be' reasonably exercised, or whether the parties were contracting in reference to a structure and mode of use already practically adopted, fixed and established. The grant of the mill and of the right of way are not to be regarded as conflicting, or either as impairing or qualifying the other, except so far as the nature of each may require, under the circumstances existing at the time of the grant.
The ruling of the judge who tried the cause, that the owner of land which is leased may have an action for the obstruction of a right of way appurtenant thereto, if the obstruction be of a permanent character and injurious to the reversion, has not been questioned at the argument. Kidgill v. Moore, 9 C. B. 364.
Judgment for the plaintiff on the verdict.