The opinion of the court was delivered by
Royce, Ch. J.This is an action of assumpsit, brought by the plaintiffs to recover from the defendants a certain proportion of the expense of repairing a dam. The case was referred. The referee fails to find the express promise or agreement by the defendants to pay a portion of said expense which the plaintiffs endeavored to prove, and finds that if the plaintiffs are entitled to claim contribution from the defendants, it must arise from the provisions contained in the by-laws of the Ascutney Mill Dam Company, which was the common source of title of both plaintiffs and defendants, and the fact that the various conveyances in the chain of title from said Ascutney Mill Dam Company to the defendants, were made subject to said by-laws. This finding restricts the inquiry as to the cause of action and the jurisdiction of the court over it, *387to the legal meaning and effect of the by-law applicable to this subject.
Art. 5 of said by-laws is the only one bearing upon the question, and that reads as follows: “All the water privileges on each of the falls, sold and unsold, are always holden, and shall be liable according to their relative value, for a fair proportion of the expenses of rebuilding, or repairing the great dam; provided such expenses are incurred by the consent and approbation of two thirds, in value, of all the privileges in interest.”
This language, incorporated into a deed of premises and appurtenant privileges to which it refers, as a condition, has the effect simply to make the conveyance subject to an equitable lien upon the premises and privileges conveyed, of the character and subject to the conditions set forth. It does not purport or attempt to attach to the conveyance a personal liability of the grantee. It is, in effect, the same as a conveyance of land subject to a specified mortgage outstanding. Unless there are words in such a conveyance importing with reasonable certainty that the grantee is to assume and pay the incumbrance specified, he incurs no personal liability by the acceptance of it, and promises nothing to the incumbrancer. Davis v. Hulett, ante, 90; Jones Mort. s. 1712; Pom. Eq. Jur. s. 1205.
The plaintiffs, therefore, simply establish that if the conditions in the latter clause of by-law 5 were complied with, there is a claim outstanding which constitutes an equitable lien upon premises in which the defendants have a title or interest of some kind. Such a lien can only be enforced in a court of equity. By the provision in the by-law, which is incorporated into these conveyances by reference, the property is made the primary fund from which such a claim is to be paid.' A court of equity alone can subject it to such a burden; and that court is the proper tribunal to determine any questions arising as to the distribution of the burden, or the liability of the different ówners of privileges *388on the ground of a common benefit. Sanborn v. Braley & Ward, 47 Vt. 170.
A jurisdictional question of this character cannot be waived by a reference, or in any other way, and should be determined when raised at any stage of the proceedings. Thayer v. Montgomery, 26 Vt. 491; Hipp v. Babin, 19 How. 278; Dumont v. Fry, 12 Fed. Rep. 21.
The judgment is reversed, and judgment for the defendant Woodruff to recover his costs.