The opinion of the court was delivered by’
Ross, J.Wesley C. Peck formerly owned the mills, and all the water power, rights and privileges in the stream, now in contention between the orator and defendant. These consist, among; other things, of a grist-mill and saw-mill. The gristmill is located further down the stream, and has a small dam and pond for turning the water of the stream upon the wheel, but not of a capacity to accumulate any considerable, water more than what flows in the stream. The stream is small, and only in time of high water furnishes sufficient running water to propel the machinery in either mill. The saw-mill, located a few rods above the grist-mill, has a dam and pond capable of storing a very considerable quantity of water. To operate the grist-mill, when the water flowing in the stream was insufficient for that purpose, Mr. Pock arranged to draw water from the *113pond at the saw-mill into the stream through a Avaste-gate in the saw-mill flume, when the water otherwise flowing in the stream was insufficient to propel the grist-mill. When the saAv-mill was running the water used ordinarily furnished a supply to the stream for operating the grist-mill, and if a full supply was not thus furnished, he drew also through the waste-gate'. While owning and thus using the properties now owned by the orator and defendant, Mr. Peck conveyed the grist-mill to the orator, and in the conveyance granted the privilege of drawing water from the saAv-mill pond in the following language : ‘ ‘ And also the' privilege of drawing water at all times from the pond through the waste-gate of the saw-mill flume situated on the stream above, * * ■* sufficient for doing all the grinding that may become, necessary or called for by the public at said grist-mill as heretofore.” The parties are in substantial accord in regard to the quantity of water which the orator is entitled to draAV, and in regard to the manner in ■which it is to be drawn.
They differ with reference to the extent of the orator’s rights, and. with reference to the duty of the orator to - contribute toAvard the maintenance of the dam at the saw-mill. The orator contends that he has the right to draw the Avater only as an easement, and that it is the duty of the defendant, who has become the owner of the saw-mill and privilege, to maintain the dam and secure to him the privilege of drawing the Avater at all times at his own expense. There is no contract between the parties, or-the defendant’s grantor and the orator, in regard to maintaining the dam. The defendant contends, there being no contract imposing the duty upon him to maintain the dam at the saw-mill privilege — that he can abandon or give up the use of the water power created by the dam and allow the dam to Avaste and perish; and the privilege granted is more than the mere right to draw the water, that it confers whatever is necessary to make the privilege available — a right to maintain the dam and pond, and have the Avater' of the stream stored in the pond, for his use. By whatever name the orator’s privi*114lege may be designated, in the absence of a contract to that effect, we do not think the defendant is under any legal obligation to maintain the dam and pond for the sole use of the orator; nor is the orator under any obligation to maintain, or help to maintain, them for the sole use of the defendant. Either party may withdraw from the use of the water power created by the dam and pond, and be under no duty to the other to contribute to the maintenance of the dam and pond. In such case the other party has the right to maintain the dam and pond to preserve the power for his own use. The orator’s privilege, conferred by the deed, would be very limited and comparatively worthless if he could not maintain the dam and pond when the defendant should withdraw from using the water power; and for that reason be under no necessity to maintain it. He is under no contract liability, express or implied, to maintain it tor the sole use of the orator. This court has heretofore placed a similar construction on a reservation of analogous water rights. In Hill v. Shorey, 42 Vt. 614, the orator conveyed a tract of land on which there was a dwelling-house and a spring of water, with an aqueduct conveying the water from the spring to a tub near the house. In the deed he reserved the right to take the waste water from the tub to an adjoining tract of land. It was held that the reservation gave him an interest in the spring of water, with the right to maintain the aqueduct from the spring to the tub, if the grantee did not. We think the principles of that decision sound and applicable to the present case. Applying them, the orator, by the privilege of drawing water from the waste-gate of the flume from the dam of the saw-mill pond, acquired an interest in the water power created by the dam and pond — such an interest that he has the right to maintain that power at his own expense if the owner of the saw-mill privilege abandons it.
Neither the orator nor the defendant being under any contract obligation to maintain the water power for the exclusive benefit of the other, either can abandon it, and be under no obligation to aid in its maintenance. Each having an interest *115in the water power, and the right to maintain it if the other abandons it, it follows that they have a mutual interest in, and are under a mutual duty to maintain, it so long as each continues to exercise his right to it. While, enjoying this mutual interest under the mutual duty, equity will compel each to contribute towards its maintenance, according to his relative right and interest; and if he refuses thus to contribute, equity will enjoin him from using the power.
This holding necessitates a further reference under the cross-bill to determine the relative right of each party to the water power created by the saw-mill dam and pond, and an apportionment of the expenses properly incurred in its maintenance. This holding .that the defendant was under no legal obligation to maintain the water power for the sole benefit of the orator to draw from, establishes that the orator has no right to the five dollars, found by the master, as damages occasioned by the delay of the defendant in completing necessary repairs in the fall of 1882, inasmuch as it was the right and duty of the orator to have made the repairs equally with the defendant; and if the defendant did not proceed with sufficient rapidity to suit his convenience, he could have made them himself. The solicitors substantially agree that the relative rights of the parties to the use of the water power created by the saw-mill dam is to be determined as they wore in use at the date of the contract and conveyance from Peck to the orator.
II. The only other matter necessary to be considered in the present stage of the case is whether the orator was entitled to the injunction which he procured against the defendant. We think, neither on the facts found by the master, nor under the relative rights and duties of the parties in and to the water, was.he entitled to the injunction. It is conceded that it was necessary to rebuild the dam, and it is found that the defendant was proceeding with due diligence to rebuild it in a proper manner. Neither the fact that the defendant used it in a safe and proper manner for his own convenience before it was completed; nor the fact that he had not then *116restored the waste-gate to the flume — under the circumstances detailed, that he had provided an equally beneficial waste-gate in the dam for the orator’s use, of which he had knowledge, and that the defendant would have restored it in the flume if the orator had asked it — gave the orator the right to an injunction which, complied with in the manner the defendant had a right to, and did understand it, endangered and caused a portion of the dam to be swept away. The orator’s solicitor contends that the defendant, knowing such a compliance with the injunction would endanger the dam in its then incomplete condition, should have applied to the chancellor for a modification of it. The orator also should have known, for he was fully cognizant of the situation of the dam, that it would be endangered by a compliance with the injunction in the manner in which the defendant had the right to understand it. A party cannot shield himself from the legitimate consequences of a rightful obedience to the behests of. an injunction procured by him; nor 'can he be heard tó claim that the other party should not yield such obedience; nor to claim damages to himself from such obedience. On the facts found there is no legitimate ground for the orator to recover either of the sums found by the master' as damages, if the pleadings were such as to allow their recovery. What damages, if any, the defendant sustained by the injunction is not now before us, but will properly come before the Court of Chancery on the defendant’s application to have them ascertained under the in-juction bond.
On these views the decree dismissing the orator’s bill was correct, and would be affirmed if it were not for the cross-bill, which it was agreed the defendant might file.. The hearing in this court has proceeded as though the cross-bill were filed. To furnish the proper relief in the cross-bill further proceedings in the Court of Chancery are necessary; and the cause is remanded with a mandate settling the rights and duties of the parties in accordance with the views already expressed.