The opinion of the court was delivered by
Ross, J.On the 22d day of November, 1858, when Lyman H. Whitney conveyed the premises owned by the defendant to Warren J. Hicks, he was the sole owner of the well of water, and of all the premises to which the water from the well flowed, excepting the orator’s premises, which he had conveyed three days prior thereto, at which time the water from the well was running to and supplying them. Being thus situated, Whitney had the right in his conveyance to Hicks, to make such a reservation in regard to the water flowing from the well, as he saw fit. The main pipe then conveyed the water, first to said Whitney’s barn *653on his homestead; thence to the orator’s premises; and thence the surplus water flowed to the old house standing on the lot which he that day conveyed to Warren J. Hicks. There was also then a pipe branching from the main pipe, on the lot he conveyed to Hicks, which conveyed a small portion of the water to an old barn standing on the lot conveyed, but the water had never been used at said barn to any great extent, and only during a small part of the year. With the acqueduct thus laid, Whitney conveyed the lot on which the well was situated, with the following reservation : “ Reserving only the right now occupied by me, of drawing the water from the well on said land, and of digging to repair or relay water-pipes from said well, — it being mutually agreed and understood, that the water shall never be diverted from its present channel, but shall first pass to the" barn of said Whitney on his homestead, and thence to the dwelling of Franklin Knapp and George E. Higby, and thence across the road to the dwelling on the lot above deeded, where the surplus water shall be freely suffered to run.” The right then occupied by said Whitney, was the right to draw all the water frqm said well. The language used is, “ the water from the well,” and not a part .of the water. To make it more certain, it is repeated in the next clause, “ the water ” — not a part of the water — “ shall never be diverted from its present channel,” <fcc , but shall pass on, “ and thence across the road to the dwelling on the lot above deeded, where the surplus water shall be freely suffered to run.” By surplus water, must be understood what was left over of the whole quantity of water flowing from the well after supplying the two places first named. From this language, so often repeated, if Whitney did not reserve the right to draw all the water flowing from the well, it would be difficult'to use language which would create such a reservation. We think he did reserve the right to draw through the aqueduct to the barn of said Whitney on his homestead, all the water flowing from the well, where he had the right to use so much of the water as he was then using and accustomed to use; that what remained, was to pass to the premises of Knapp and Higby, where so much of the water could be used, as was then used and accustomed to be used, and the rest *654was to pass as surplus water, to the house on .the premises then conveyed. The branch pipe was wholly on the premises conveyed, and was conveyed with the premises, and not as an appurtenance to them. When the grantor reserved from the operation of that deed, the water flowing from the well, he reserved what was flowing through the branch pipe, as well as what flowed through the^main.pipe below the branch pipe. If Whitney ceased to use the water at the barn on his homestead, it would go to increase the surplus. We do not think he could convey the right to any one to draw the same quantity at some other place. The water was to run in the then channel, and when it passed the barn on the homestead, it became a part of the surplus, if it was not necessary to supply the Knapp and Higby premises, as they were then supplied. We do not find anything in the testimony that varies the rights of the orator and defendant in the water flowing from the spring, from what they were as fixed by the reservation in said deed to Warren and J. Hicks. As the surplus was to be returned to the premises, the defendant has the right to use that surplus as he chooses and when he chooses. The arrangement between Terrill, Aldrich, and Hicks, by which the course of aqueduct was changed somewhat, we do not think was intended to or did vary the rights of the various parties to the water flowing from the well. We do not think the defendant has any right to the water till it becomes surplus water, by remaining after having passed and supplied the barn on the homestead, and the orator’s premises, as they were supplied at the date of the conveyance. This surplus the defendant has the right to, and the orator is bound to furnish him reasonable facilities to convey it from his house, and is also bound to so use the water at his premises, that the surplus water may pass freely to the defendant, if the defendant desires to take it. 'The 16th chancery rule, in regard to which the solicitors are at variance, and which we are desired to construe, we understand to mean, that each party before he commences taking the testimony on his side, shall give to the other party a full list of the names of the witnesses whose depositions he proposes to take. This is the construction which has been universally given to the rule, so far as we are aware. The defendant could never know or tell what *655witnesses lie should be under the necessity of using, till he knew what the orator had shown by his witnesses. The pro forma decree of the court of chancery is reversed, and the cause is remanded, with a mandate to enter a decree for the orator, perpetually enjoining the defendant from taking any water from said well by said branch pipe, or in any other way than as surplus water, as herein defined, after it shall have reached the premises of the orator. From the fact that the orator has burdened the case with needless testimony, we allow to the orator only two thirds of the entire expense of his testimony, including witness, master, and solicitor fees, and fees for copies of the testimony. We should have made a larger reduction in these expenses, if the defendant had not followed in this respect the ba'd example set him by the orator.