The opinion of the court was delivered by
Redfield, J.This is an action on the case for injuriously diverting water from the plaintiff’s machinery in - the village of Brandon. On the 1st of May, 1823, John Conant, who was then owner of the whole water-power on both sides of the stream, conveyed two undivided third parts of the land on the east side of the stream, to his two sons, John A. and Chauncey W., together with the buildings thereon, and certain water rights connected therewith. John Conant continued the owner of the grist-mill on the west side of the stream, and the whole water-power thereon, and sold the grist-mill and privilege, March 2, 1852; and on the 31st March, 1866, the title was purchased by the defendants; and from that time to the commencement of this suit, December *1228th, 1866, the plaintiff claims the defendants wrongfully diverted the water from the plaintiff’s mills and machinery. The exceptions state that the defendants’ “ mill was used and operated in the ordinary way of operating such mills, from the time defendants acquired the title, until the commencement of this suit, no objection being made thereto by any one ; and no evidence tending to show any negligence or improper management on the part of the defendants during that time, was introduced.” The defendants used the water for their grist-mill, from March to December, 1866, with proper care, and in the same manner it had been used by their grantors; and, so far as the case discloses, without complaint that thereby they were working an injury to the plaintiff. Neither party ha'd any proper ownership of the water, but each had a right to its use as a motive power; and the superior and inferior right, as between the respective owners, was defined and regulated by certain stipulations in the deed of John Conant to his two sons, and by the subsequent mutual covenants between the same parties, of the 8th of April, 1841. By the latter deed, the blast-furnace, while in blast, was entitled to the precedence in the use of the water, and the new grist-mill was entitled to the next use. But, except when there was not a full supply, “ all are entitled to the requisite supply.”
It must be expected that proprietors of mills and machinery will appropriate to their use useful inventions and improved machinery, when such will render their works more efficient and profitable. The statement of the case would indicate that the Tyler wheel was a- great improvement upon the overshot wheel, both in the efficiency of the work and the saving of water ; and while it might require more'waler while all the machinery was in motion, yet it would do a given quantity of work in less time, and with much less quantity of water. Whether in a succession of days and weeks, it would use and divert more water than the overshot wheel, might, perhaps, be uncertain. If the Tyler wheel, in propelling more machinery than was in use in April, 1841, should for a few hours at a time, use more water than the overshot wheel, and then, by closing the gates, allow the dam to fill, so that, in fact, the power reserved for use on the east side of the *123stream would be as much and as beneficial as that reserved when the other wheel was in use, there would seem no good reason for complaint.
By the indenture of April 8, 1841, “ in case there is not at any time a full supply of water for the simultaneous operations of the works connected with the dam, the grist-mill shall draw its requisite quantity of water, exclusive of all other works.” This exclusive right secured to the new grist-mill, was not merely a right to use the water exclusively, in the manner and for the time it was then accustomed to be used; but a right to use the water in quantity as was then used, and for such length of time during the season of scarcity, as the custom and business of the mill might require. Angelí Water Courses, § 149, et seq., and cases there cited. And if the work done by the Tyler wheel in six hours was as much as the overshot wheel would do in twenty-four hours, and with the use of less water, there would seem no infraction of the covenants in the indenture, provided the business done was the same in character as was being done in 1841.
At the time the defendants acquired their title to the grist-mill, the flume and wheel that had been in use to move the machinery on the opposite side of the stream, had rotted away, and could not be used. The defendants operated the grist-mill as it ever had been, and with proper care, and used water which otherwise could be used by no one ; and the plaintiff had no flume, wheel, or other appliance by which the water could be used, and no notice or intimation was given the defendants that in “ grinding at the mill ” they were working mischief to the plaintiff; or that the plaintiff purposed or desired to rebuild its works, and use the water. The declaration avers that the defendants have used the water at their grist-mill “ so as unlawfully to deprive the plaintiff of the use of the water from said dam, to operate plaintiff’s wheel to said machine shop.” The proof is, that during the time alleged, the plaintiff had no wheel to be operated, or flume whereby the water could be conducted from the dam. The act of the defendants did not divert the water from the plaintiff’s wheel; did not jostle its action, or stay its motion. It is well settled in actions for flowage, that the grantee of the dam and *124mill, by continuing the use of the water and dam, is not liable to an action for flowing thereby the lands above the dam, until notice and request to discontinue the obstruction. In Noyes v. Sullivan, 24 Conn. 15, Hinman, J., says: “One purchasing a dam may lawfully use it as it was when purchased, until he has notice to remove it, or not so to use it; and the law has always been held the same since. Penrudock's case, 5 Co. 101.” In Johnson v. Lewis, 13 Conn. 303, Sherman, J., says: “ The rule is very reasonable. The purchaser of property might be subject to great injustice, if he were made responsible for consequences of which he was ignorant, and for damages which he never intended to occasion. They are often such as cannot be easily known, except to the party injured.” In Penrudock's case, the court resolved that the grantee of premises which has a roof unlawfully projecting over other premises, to the injury of a neighbor, was not liable to damages for continuing the same, until notice and request to remove it. See Brown v. Bowen, 30 N. Y. 519; Plummer v. Harper, 3 N. H. 88; Angeli Water Courses, § 403; Carlton v. Redington, 21 N. H. 291; Eastman v. Amoskeag Manufacturing Co., 44 N. H. 143. In Brown v. Cauga. & Susquehanna Railroad Co., 2 Ker. 492, the court, Denio, J., held a different doctrine, and that “ a pai'ty that continues a nuisance erected by another, is responsible for the damage caused by its continuance, though he has not been notified to abate it.” The doctrine held by this able and learned jurist, as applied to the facts of this case, might be deemed reasonable, without impugning the general rule on this subject. When one keeps up and maintains a nuisance, clearly (if he would use common diligence) or consciously working mischief to another, it is just that he should respond in damages for the injury he has done.
But in this case, so far as the record discloses, the defendants operated their grist-mill prudently. They saw and knew that there was no mill, flume, or machinery that could be moved or used, by water from this dam, on the other side of the stream. And the water in the mill-pond, not<used by them, must, necessarily, flow over the dam, or waste. If they had inquired into the history of the matter, they would have learned that in the spring *125of 1860, the plaintiff “ wholly discontinued the use of machinery in the machine shop, and removed the machinery therefrom.” And if they were “ compelled ” to do this, it was by the act of other parties, and not these defendants. The defendants, therefore, by continuing to use their grist-mill in the ordinary manner, without notice, or reason to believe, that the plaintiff had any purpose or occasion to use the water in the stream, were guilty of no actionable wrong to the plaintiff. There is no doubt that the law will always award some damages for the invasion of a right; for it is often proper that a right should be vindicated, to arrest the operation of the statute of limitations. But among tenants in common of a water-mill power, neither has any property in the water ; and when one suspends, temporarily, the use of his portion, and the other continues to use from the common reservoir of power what otherwise would waste, there is no presumption of adverse user, but rather of consent and acquiescence.
II. It is not claimed that the deed of Briggs, as agent, conveyed any title to John Howe, Jr., of the premises claimed by the plaintiff. The plaintiff maintains that it was in lawful possession, with color of title, under the deed from John Howe, Jr., dated April 18, 1864. Four-years before that time, the operation of machinery on the premises had been “ wholly discontined, and the same removed from the building.” The plaintiff was in possession, under color of title, of the brick building, without machinery, wheel, or fume connecting the building with the dam or water, and no appliance for the use of the water. The plaintiff could maintain an action against a stranger for invading his possession, standing upon his possession alone. But the plaintiff was without actual title. The covenants in the indenture of 1841 were not assigned to the plaintiff, and the most the plaintiff can claim is, that it was in possession, with color of title, of the land on which the shop and eastern portion of the dam stand, with no greater right to use the water than the possession of riparian lands gives it. The right to use the water by grant from John Conant to his sons, or that arising from the indenture of 1841, does not appertain to the plaintiff.
.If we should concede that the plaintiff might use for mill pur*126poses, as a right appurtenant or incident to its possession, a share of the water on the east side of the stream, as against any having no better right than the plaintiff, that would not be a specific right in any portion of the water which the defendants have, or could, wrongfully appropriate to their use. It is rather a right of user in common with the defendants, and subject to the defendants’ superior right to use the water for their grist-mill; and if the defendants should use the whole water in the stream when the plaintiff has no machinery or provision for its use, such user will be presumed to be with the consent and for the benefit of all. The right of riparian proprietors in the use of water upon opposite sides of a stream, is analogous to that of tenants in common. Their interest and right are undivided and in the whole, per my et per tout; and if one discontinues the use, and the other continues to use, there is nothing adverse in such act. And such party “ does nothing for which an action can be maintained against him, or nominal damages recovered in the assertion of an invaded right.” Merrick, J., in Pratt v. Lamson, 2 Allen, 275; Angell Water Courses, § 219 b. The defendants have therefore done no tortious act against this plaintiff, for which this action could be maintained.
In the view we have taken of this case, we have no occasion to discuss the legal effect of the deed of John Conant to his two sons, of March 1st, 1823 ; nor of the indenture between them as to the use of the water, of the 8th of April, 1841.
The judgment of the county court is reversed, and cause remanded.