There is no difficulty in this case. It appears from the facts reported by the master that the defendants' mills were built in 1836, and there being nothing to show that they are now operated in respect of time differently from what they have always been since their erection, no case is made for the remedial interposition of the court by way of injunction. Indeed, from aught that appears, the defendants may well have acquired a prescriptive right to operate their mills in the manner they are now operated; and, moreover, it is not even found that such operation is an unreasonable use of their rights as mill-owners and riparian proprietors. At most, the plaintiffs only show that they are injured by the defendants' use of the water; but this fact of itself plainly affords no sufficient ground for the exercise of the summary authority which is invoked.
Nor is any case made requiring the court to fix and determine the rights of the parties in the waters of the reservoirs named in the bill, for, in this respect, the plaintiffs' sole ground of complaint is, that the defendants, by running their mills at unusual hours, have improperly exhausted the supply of water in the Harrisville pond, and thus have compelled the plaintiffs to stop their mills, or draw from the reservoirs above sooner than they otherwise would, and to their injury. But until it is established that in respect of time or amount of water the defendants have exceeded their rights in the Harrisville pond, there can be no occasion to determine the rights of the parties in the reservoirs, nor will the court undertake to adjust them.
Case discharged.
CARPENTER J., did not sit: the others concurred. *Page 620