On the first argument of this case, it was submitted on the part of the respondents’ counsel upon a printed brief, which did not discuss one of the points made by the appellants’ counsel, probably for the reason that it was made for the first time in this court. As the point seemed to us to present some difficulty in maintaining the action, a re-argument was ordered on that alone.
The action was brought for damages for a diversion of water from a mill which the plaintiffs occupied together. The summons was not what is called one for relief, but one for a money demand arising upon contract. The complaint set forth, fully, the origin of the rights of the plaintiffs to the water which they claimed the right to use at their mill. And it appears, from its allegations, that these rights had been derived from the defendants through different separate conveyances, so that a right to an undivided half of the water claimed was vested in one of the plaintiffs through a lease and an assignment, and the right to the other undivided half was vested absolutely in the other plaintiff by grant. The language of the complaint seems aptly designed to state a cause of action for a breach of the respective covenants of the lease and the deed for quiet enjoyment. And as the summons was one upon contract, the question arose, whether the action must not be regarded necessarily as *336one upon contract, and, if so, whether the plaintiffs could join in such an action, neither one having any interest in the covenants in favor of the other. Upon the re-argnment, the respondents’ counsel conceded,-that, if the action must be regarded as one on contract, the plaintiffs could not join, which really seems very clear. But he claimed that the allegations of the complaint were sufficient to show a joint cause of action in tort, in favor of the plaintiffs as tenants in common, for a wrongful diversion of the water from their mill, and that the case was tried as such by both parties in the court below. That the allegations of the complaint, though apparently designed to state a cause of action upon contract, are sufficient to show such a joint cause of action in tort, we have no doubt. And although, if the question had been presented properly at the preliminary stage of the case, the character of the summons, taken in connection with the form of the allegations of the complaint, might have required it to be decided that the action must be in strictness regarded as upon contract, yet, notwithstanding this, if the question was not raised, and the complaint is sufficient, as it is, to show a joint cause of action in tort, and the case was so tried upon the merits by both parties, we have come to the conclusion that it must be so treated here.'
There is nothing to show that the question was raised at all in the court below. It is true, a motion for a non-suit was made. And we at first thought that might be sufficient to authorize the defendants to take advantage of it. But the record does not disclose, what were the grounds of the motion. The fact that such a motion was made is not necessarily inconsistent with the theory that the case was tried as an action of tort. The motion may have been founded merely upon a claim' by the defendants’ counsel that the plaintiffs had failed to sustain such an action by the proof. The facts that, if the action was considered as one upon contract, the objec*337tion appeared -upon the face of the complaint and might have been taken advantage of by demurrer, and that no demurrer was interposed, and that both parties introduced fully their evidence as to the' whole controversy, in the absence of any thing showing that this distinct question was raised at all in the court below, we think, sufficiently establish the claim of the respondents’ counsel, that it was tried there as an action of tort, without objection, and must be so treated here.
The material legal question presented in the case requires the construction of the provisions in th various conveyances, by which the seven hundred square inches of water to which the plaintiffs are now entitled were originally reserved, and have since beetf conveyed. There can be no doubt that the intent and effect of those provisions were, to create a priority of right in the owners of these seven hundred square inches. The language of the deed where the reservation was first made by the original proprietors was,- that they reserved to themselves “the exclusive right to take and use seven hundred square inches of water,” etc. This word “exclusive” clearly imports that the right so reserved was to be prior and paramount to that of other parties created by that conveyance. This was clearly the construction put upon it by the parties themselves ; for, in the general agreement relating to the ■ water power, made by all the owners, they speak of their seven hundred inches as being “^referenced” to Cole & Bailey.
Much has been said in this and other cases, growing • out of this water power, about the uncertainty arising from the absence of any stipulation or provision about the “head” of water, to which the respective parties were to be entitled. But whatever difficulty, if any, that fact may create in other cases, we think that, r where it is provided that a particular owner is entitled to priority over others, that fairly and reasonably implies that he is to *338be entitled to a bead of water sufficient to enable Mm to make a practical, beneficial use of tbe amount to wbicb be is entitled, for tbe purpose of propelling machinery. This is essential to tbe enjoyment of tbe priority of right.
And it follows, that whenever, in such case, tbe bead of water in tbe dam becomes so low, that if parties subsequent in right continue to use tbe water they will prevent such a practical beneficial use by tbe party having tbe prior right, they are then wrongfully diverting bis water, and become bable to an action for tbe damages.
Such a state of facts was shown here. We shall not allude in detail to tbe testimony ; but it shows, clearly, that tbe defendants were in tbe habit of using the water when tbe bead was so low that tbe plaintiffs could not make any practical beneficial use of their seven hundred inches. Of course, where other parties are also perpetrating a similar wrong, as is claimed here, it becomes impossible ever to apportion tbe damage with entire accuracy. But we cannot say that the evidence does not show that the defendants have themselves inflicted damage to tbe amount found by tbe court below. On tbe contrary, we think it sustains tbe finding upon that point.
Tbe allegations in tbe answer that tbe plaintiffs bad enlarged their opening so as to draw more than tbe seven hundred inches to wbicb they were entitled, do not constitute any defense. If true, and tbe defendants are prejudiced, they have their remedy. But it constitutes no reason why tbe defendants should be allowed to divert with impunity tbe amount to wMcb tbe plaintiffs are entitled.
By the Court. — Tbe judgment is affirmed, with costs.
A motion for a rehearing was denied at tbe January term, 1870.