The opinion of the court was delivered by
Steele, J.The defendants bought with notice of the orator’s claim. They, therefore, took their risk as to its validity. That they were told, or that they believed the claim was unfounded, does not alter the case. They stand on the rights of Peleg S. Marsh, and can- make no better defense than he could have made if the suit had been brought against him while living and owning the premises. The orator, in 1862, acquired the interest of Daniel Weston, and now owns the whole “ fulling-mill right.” If that right, or privilege, is broader or more extended than when first granted in the lease of February 12, 1794, from Joel Marsh to William Burbank, it has become so by reason of some transition between Daniel Weston and Peleg S. Marsh. There is no record evidence.of any such transaction.
I. The orator claims that Daniel Weston made a trade with Peleg S. Marsh, by which Marsh sold him the right to use the privilege in the manner specified in the “ unsigned lease.” Has the orator established this claim ? It is very clear that they had negotiations in the direction indicated by that unsigned instrument, but the testimony from witnesses, in our judgment, falls short of proving that they finally settled and agreed upon all its terms, and the evidence from occupation, is as consistent with the theory that they had not so agreed, as with the theory that they had settled upon these terms, and the evidence from the receipts only tends to show that Weston was treated as having a right to some amount of water for his shop, and not that the extent of that right was defined in the unsigned lease. Our conclusion on this branch of the ease is, that the evidence fails to establish a right according to the terms of the unsigned lease.
II. The orator claims that if he is not entitled to the enjoyment of the water according to the terms of this unsigned instrument, he is entitled to use it according to the terms of the original lease from Joel Marsh to William Burbank, discharged of its limitation to the uses of a fulling-mill. This claim accords with *536the conduct of the parties. The erection of the wheelwright and joiner shop, to be operated by this water, was, unless Marsh had previously consented to the discharge of its limitation to use for the purposes of a fulling-mill, an unusually foolhardy enterprise. The objections which Marsh is shown to have urged against the unsigned lease, were not that by its terms it discharged this limitation, or that he had not consented to the erection of a wheelwright shop, but that the lease by its terms granted too large an amount of water. The receipts for rent indicate that the right of Daniel Weston to some water for purposes other than “ fulling-mill uses,” was conceded. Such, too, we think, is the general tenor of the oral testimony. Add to this the fact or circumstance that it made comparatively little difference with Marsh what use Weston made of the water to which he was entitled, provided it was not used to run a competing saw or grist-mill,' and there would seem to be no serious doubt but the wheelwright and joiner’s shop was erected in reliance upon Marsh’s consent to the discharge of the privilege, or right, from its limitation to the uses of a fulling-mill. So far as Marsh had a material and substantial interest in the limitation, that is, to the extent of restraining parties from the erection of competing mills, we think it reasonable to conclude that he waived no right.
III.' Upon this finding of the facts, is the orator entitled to a decree ? There would be more force in the defendant’s claim, that upon this finding there is a fatal variance between the case as alleged and the case as proved, if the bill depended entirely in contract. It is not so much a proceeding to enforce a contract, as to establish and define the extent of a right. The orator sets up the right as he claims it, and to describe the extent of that claim, alleges the contract; but he complains that the defendants have prohibited him any use of the water for his shop, eithér to the extent he claims it, or less, and he specifically prays the court, in case they do not find his right'as broad as his claim, to establish and decree to what extent he is entitled to the use of the water. The wrongful act he complains of, is the defendant’s shutting him off from the use of the water for his shop. Upon the finding that the orator has a right of the same nature as the one he claims, and which, though it does not go to the full extent *537he claims, is yet broad enough to render unjustifiable the defendant’s act which is complained of, the orator becomes entitled to a decree in his favor, establishing and defining that right, in answer to his prayer therefor. The proceeding, when properly considered, not being upon the contract, the rules relating to a variance between the contract as alleged and as proved, do not apply, and the case upon this finding, stands as it would if the defendants had answered, admitting all the court have found, and denying that the orator was entitled to the water according to the terms of the unsigned lease. Heard upon such a bill and answer, the case could have only resulted in a decree for the orator to the extent that his claim was conceded. This reasoning applies to the question of costs. The fundamental issue in this case, stated categorically, is this, has the orator a right to the use of the water for other than fulling-mill purposes ? Upon this question, the orator took the affirmative. The defendants took the negative ; and took it as well by their answer, as by their act in prohibiting the orator all use of the water for his shop. The orator having prevailed upon this question, it would seem no reason for denying him costs, that the court in defining his right do not concede it to the full extent he asks, so long as they give him more than the defendants would admit.
The result is, the court hold that the orator is entitled to a decree confirming to him, his heirs and assigns, the right to use water from the said privilege, unrestricted by, and discharged from, any limitation of its use to the purposes of a fulling-mill, but in other respects, subject to the terms, provisions, stipulations, and restrictions, contained in the lease of said right from Joel Marsh to William Burbank, by them signed, and dated February 12, 1794, and recorded in the town clerk’s office of Bethel, February 13, 1794, and subject to the farther limitation, that said water shall not be used by said orator, his heirs or assigns, to run a saw or grist-mill. The orator is also entitled to costs. ' The pro forma decree of the court of chancery is reversed ; and it is ordered that the cause be remanded to the court of chancery, to be perfected, and that decree there issue in accordance with the conclusions above stated.