The right of the plaintiffs to an enlargement of the flume upon the defendants' premises, if it exists, results from the deed of the Gilford Manufacturing and Mechanics Company to Appleton, September 1, 1864, and from the deed of the plaintiffs to the defendants, March 6, 1875. In the former deed, the grantors, after conveying the land by metes and bounds, and the mill upon it, now owned by the plaintiffs, describe in the deed the water-rights annexed to the mill as "four undivided sixteenth parts of one half the Avery dam, and four undivided sixteenth parts of one half of the water of said dam, with a right to draw the water through said company's flume, receiving said water at the southerly end of the grist-mill, and four undivided sixteenth parts of said flume, or of any flume hereafter constructed in place thereof." The title to the defendants' premises, by a conveyance to the plaintiffs March 6, 1875, was united with that of the plaintiffs' premises; and on the same day the plaintiffs conveyed to the defendants their premises, by metes and bounds, and with covenants of warranty defining the water-rights annexed as "four undivided sixteenth parts of one half the Avery dam, and four undivided sixteenth parts of one half the water of said dam, and four undivided sixteenth parts of the flume now or formerly owned by said company, or of any flume hereafter constructed in place thereof." The water-rights belonging to the plaintiffs' premises were carefully defined, and conveyed as incident to his mill, and as part of the premises, by the deed of September 1, 1864; and the water-rights belonging to the defendants' premises were in their deed as carefully defined, and by the same description as was contained in the deed of the same premises to the plaintiffs, who by their deed conveyed to the defendants their water-rights as part of the premises, and as incident to their mills. Though the title to both mills was, before the conveyance to the defendants, united in the plaintiffs, the water-rights annexed to each were separate; and when *Page 504 the plaintiffs gave a deed to the defendants, they conveyed with the land and mills all the water-rights which by deed or by use had been annexed to these mills before, retaining whatever water-rights they owned and did not convey, namely, those which by their first deed were described as annexed and incident to their mill, and no more.
The plaintiffs owning both premises and mills, one of which was supplied with water-power by means of a flume extending across and through the other, the conveyance of the other with its incidental water-rights, with no express reservation of the flume and water-rights belonging to the lower mill, left them to the plaintiffs as incident to and a part of their retained premises. They remained attached to the plaintiffs' mill, as a part of their estate not included in the conveyance to the defendants. The flume and rights thus remaining to the plaintiffs are what had become annexed to their premises by deed, by use, and by practical location; and they cannot now be enlarged in any way to narrow the defendants' grant, or to curtail the rights which in express terms the plaintiffs conveyed to the defendants. Whether the plaintiffs' water-rights be regarded as incident to and a part of their premises not conveyed to the defendants, or as an implied reservation of an existing incident to the plaintiffs' mill, and subjecting the defendants' premises to the easement of a flume as a water-way to the plaintiffs' mill, the extent of the excepted incident or reserved easement is too well defined to admit of any enlargement without their consent. The water-rights conveyed to the plaintiffs by their first deed, and retained in their conveyance to the defendants, were four sixteenths of one half the dam and water, and four sixteenths of the flume as a way for the water to the mill. The flume was an object definitely marked and located. It was subsequently reconstructed, of the same extent and capacity and in the same place, with no claim of the plaintiffs then made for a larger one. It has always been in visible use as an adjunct of the plaintiffs' mill and premises, and is found to be of sufficient capacity for the passage of the plaintiffs' four sixteenths of half the water. When the plaintiffs accepted their deed conveying water-rights by definite description, and, without enlargement or restriction, conveyed to the defendants all subsequently acquired water-rights, they adopted the flume then existing as the measure of a necessary water-way to their mill. It was that flume, then visibly attached to and used as a part of the plaintiffs' premises, to the limits of which the defendants' grant extended, and not some other or wider or differently located flume; and the plaintiffs cannot claim its enlargement upon land of the defendants with any greater reason than they could the right to draw from the dam to their mill more than their four sixteenths of half the water.
Bill dismissed.
CARPENTER, J., did not sit: the others concurred. *Page 505