The opinion of the court was delivered by
Barrett, J.In this case the plaintiffs acquired their rights, in respect to the water privilege in question, from Baylies, who conveyed to C. H. Wilder certain factory propery, and in connec*673tion therewith, “ the water privilege connected with, and attached to said premises, with the first right to draw water from said mill pond (the prior rights of Waterman and others being excepted from said conveyance), said Baylies reserving the right to draw water from said pond for the use of his water privilege on the west side of said branch, but not to the damage of the water privilege hereby granted to said Wilder, when there shall be a scarcity of water.”
Subsequently, Baylies conveyed to.the defendant said last named water privilege, with the right which he reserved to himself in his conveyance to C. H. Wilder, as above set forth. So that the defendant stands in the place, and in full possession of the rights of Baylies, under the said reservation.
The present action was brought to _ recover damages alleged to have been caused by the defendant, in so using his water privilege, under said reservation, as to infringe the rights of the plaintiffs under the deed of Baylies to C. H. Wilder.
The defendant insists that he has a right to use the water, provided he does not draw it down below the top of the dam, as it was in 1847, at the time of the conveyance by Baylies to C. H. Wilder.
In other words, he claims that the exclusive right of the plaintiffs, in the time of scarcity of water, is limited to a full pond, as it would be with a dam of the sameAeight as it was when said conveyance was made to C. H. Wilder.
The plaintiffs have raised the top of the dam about six inches, the right to do which the defendant does not deny. But he claims that inasmuch as the water, thus saved in the pond, would have run over the dam, but for the addition made thereto by the plaintiffs, he has a common right with the plaintiffs to draw and use the water thus accumulated, irrespective of 'the plaintiffs’ needing it to carry on their business. y
We think the defendant takes an erroneous ¥iew of the matter. It seems to us that the deed of Baylies to C. H. Wilder invested him and his assigns with the full right to make that pond afford as ample a supply of water as they can by .raising the dam, and with the full right, as against Baylies and his, assigns, to the first use of that water for the full beneficial enjoyment of the premises conveyed by said deed.
*674The reservation in virtue of which alone the defendant has any right, is expressly limited, so that it ceases to operate when the use of the water by the defendant “shall be to the damage of said Wilder when there shall be a scarcity.” In the present case, the verdict, in connection with the evidence, shows that the conjuncture had occurred, when, by the terms of the deed, the operation of the reservation was suspended.
This left the plaintiffs in the enjoyment of the exclusive right} and exposed the defendant to liability, if he infringed that right, by using the water to the damage of the plaintiffs’ privilege.
Under these views, the requests made by the defendant were not well grounded. We think the charge full as favorable to the defendant, as the law, in view of the evidence, would warrant.
Judgment is affirmed.