The facts of this case, as found by the referee, show that, in the year 1814, one Dill was the owner in fee of certain premises on the Owasco creek, in the town of Auburn, Cayuga county, lying on both sides of the creek. On September twelfth of the same year, he conveyed to Miller and Beach ten acres, part of these premises on the creek lying below the land now owned by the plaintiff, with the right, should it be necessary for the purpose of driving *Page 217 machinery by the water of the Owasco creek, to build and construct a dam on the land of Dill, at any place within forty rods of the great falls on said creek, and to take the water in race-ways over Dill's land, so as the grantees, assigns, etc., should be enabled to make the best possible use of the water.
In 1816 the grantees erected a building for a cotton factory upon the premises so conveyed to them as aforesaid, and a dam on the land of Dill, within forty rods of the falls and thirty rods above the factory, for the purpose of supplying water to the factory. This was the source of the water supply to the factory until the construction of the new dam, hereinafter referred to. The defendant, prior to 1864, succeeded to the rights of Miller and Beach, and also to the title to the land on which the dam was erected.
After the erection of the factory and the dam, Dill conveyed another parcel of land on the creek to the plaintiff. This was higher up than that conveyed to Miller and Beach, and subject to their rights.
In 1864, the dam of 1816 having become dilapidated and settled, the defendant built a new dam upon his own land, about thirty rods below. At that time the timbers of the old dam had in part gone out, and in 1865 it was practically destroyed.
The dam of 1816 set back, to some extent, the water of the creek upon the plaintiff's premises. After it became dilapidated it did not do this to the same extent as when it was new and tight. The present dam is no higher than that of 1816, and has equal capacity to discharge water. Though the water of the creek sets back upon the premises of the plaintiff to a higher point with the present dam than with the old one, as the latter stood several years before the new dam was built, this difference is owing to the settled and dilapidated condition of the dam of 1816, during the latter part of its existence.
Under this state of facts the question is, (1) What are the rights of the defendant under the deed of 1814, considered as a grant? (2) What are his rights, if any, under the theories of prescription? *Page 218
1. Considering his position as a grantee of an easement, I think that he must be confined to the exercise of the rights according to the terms of his deed. This was by no means the case of a general and indeterminate grant to flow the upland. That was only subject to flowage from the results of a dam erected at a specified place and used in a prescribed manner. It is a general rule in the law of easements created by grant, that when a specified mode of exercising them is pointed out that must be followed. The burden upon the land must not only not be increased, but must not be varied from. The fact that the defendant subsequently acquired the land on which the dam stood is immaterial. The point of inquiry is, what are the defendant's rights as to casting a burden upon the land of the plaintiff, who claims under Dill, the common grantor? If Dill had remained owner, the defendant could only have flooded his land in accordance with the terms of the grant. As against the plaintiff, he can do no more. The plaintiff has a right to repose upon the restrictions in his grant, and to maintain that the easement shall only be exercised in the precise manner granted.
Illustrations of this subject may be derived from grants of rights of way. A distinction is taken between a grant which is indefinite in its limitation and one where, from the nature of the use or from its terms, it is restricted and defined. Thus, if a way be granted to a particular corner of a field, the grantee of it may not enter at any other point. (Henning v. Burnet, 8 Exch., 187.) So a right of way "over and along" a strip of land does not give a right to go "across" it. (Senhouse v.Christian, 1 Term R, 560.)
Had there been in the case at bar a general right to flow for the purposes of a water power, the land now the property of the plaintiff, it would have been immaterial where the dam was placed. The contract would then have been for a certain amount of burden upon the land. But that is not this case. The contract here is to erect a dam in a specified place, and to obtain a water power in that manner. Although the land on which the dam stands may now belong to the defendant, yet *Page 219 so far as the plaintiff is concerned, the grant is binding on him only when exercised according to its terms. The correct theory of the case is, that the language of the deed gave the grantee a right of election to determine precisely where the original dam should be erected, and that election having been exercised, the right to elect has been exhausted. The subject is treated in this manner in Goodrich v. Longley (1 Gray, 615). In that case, there was the privilege of constructing and building a dam upon the land of G., at the outlet of M. pond, for the purpose of raising a head of water upon said pond. It was held, that this indenture did not authorize L., after erecting and completing one dam on G.'s land, to change its hight or location. This case is very strong, since it was conceded that the grant, in its terms, was without restriction as to the quantity of land to be taken, or the time within which the dam was to be constructed. But the court said, that "it would by no means follow that the grantees, after the limits of the dam had been marked out and the structure fully completed, would have the right either to make a new location, or so to change the structure as to cover more land of the grantor, or cause more of his land to be flowed. On the other hand, the reasonable construction of the grant seems to us to be,that when the grantees had located their dam and completed thestructure, the right of appropriating the land for that purposewas exhausted." (Page 617.)
In Jennison v. Walker (11 Gray, 423), the defendant had a right to lay an aqueduct across the plaintiff's land, from a spring to his own land. Having laid down logs for this purpose, it was held that he could not afterwards change their direction. The principle was laid down in the following terms: Where an easement in land is granted in general terms, without giving definite location and description to it, so that the part of the land over which the right is to be exercised cannot be definitely ascertained, the grantee has not thereby a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been one exercised in a fixed and defined *Page 220 cause, with the full acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee. If it be admitted that he has the right originally to select the place in which the easement is to be enjoyed, he cannot afterwards alter it. * * * This rule rests on the principle that where the terms of a grant are general or indefinite, so that its construction is uncertain or ambiguous, the acts of the parties contemporaneous with the grant, giving a practical construction to it, shall be deemed to be a just exposition of their intent. (See, also,Cooke v. Booth, Cowp., 819.) The law is still more clear where the grant is to flow land with water by means of a dam erected at a particular place. A distinction between such a restricted and an unrestricted right is carefully drawn inStackpole v. Curtis (32 Me., 383). So it was held inMorehead v. Snyder (31 Penn. St., 514), that the grant of a right of a tail-race over the land of another is transitory as to position only until the race is once made. Dickierson v.Mixter (13 Metc., 217) is a strong instance of a close construction of specific grants of this kind. The plaintiff, in that case, had conveyed to one Waite, a grantor of the defendant, a narrow strip of land to enable him to erect a mill-dam thereon, and also the right to build upon the land of the grantor, near the north-west corner of S.W.'s land, a mill or a factory, and the right to dig a canal from the mill-dam to such mill as might be erected. The mill was not in fact built upon the plaintiff's land, but on a small piece of land adjoining to it, and near to the specified course. The canal was dug by the defendant across the plaintiff's land, and discharged the water into the same place where it would have been discharged, if the mill had been built on the plaintiff's land. The court held that there was no right under the plaintiff's grant to dig a canal in any other place than that designated in the deed. (P. 220.)
In the case at bar, the plaintiff is in no way affected by the fact that the defendant has acquired the ownership of the land on which the dam originally stood, in addition to that on which the new dam is constructed.
He purchased simply subject to a dam to be erected on *Page 221 Dill's land. It must still be erected on land that belonged toDill at the time when the easement was created.
2. If the defendant could maintain a prescriptive right to the property, another rule would be applicable. That would have given him a right to flood the land to the hight which his dam had set the water back for twenty years, without any reference to the place where the dam had stood. The substance of a prescriptive right is the burden or easement upon the land, and the mode in which it is exercised is immaterial. So a change in the place of a dam is of no importance under a claim by prescription. (Davis v. Brigham, 29 Me., 391; Stackpole v. Curtis, 32 id., 382;Whittier v. Cocheco Mfg. Co., 9 N.H., 454; Washb. on Easements, 105, parag. 53.) In this respect it differs materially from a right created by a specific grant, which can only be exercised in accordance with its terms.
The defendant, however, cannot claim by prescription in the present case, but must confine himself to his grant. Where an easement has been created by grant or reservation, no use of it will be held to be adverse, which can be construed to be consistent with the terms of the grant or reservation, and consequently the extent of the easement will be limited by the terms of such grant or reservation. (Washb. on Easements, 94, par. 37; Atkins v. Boardman, 20 Pick., 291; S.C., 2 Metc., 457; Gayetty v. Bethune, 14 Mass., 49; Wheatley v.Chrisman, 24 Penn. St., 298.) In other words, the law never presumes a grant nor raises a prescription from actual use where there has been an express grant to which the use substantially conforms. (Same cases.)
But if a prescriptive right could be set up there is another difficulty in the present case. There is no finding of fact that the dam maintained its original hight for twenty years. It was found to be settled and dilapidated when the new dam was erected. How long this had been so was unknown, or at least was unascertained by the referee. If, during a portion of the prescriptive period, the dam had been leaky and for that reason the water had not been set back to the full *Page 222 capacity of the dam, it could not, on its restoration, be made to flood the land, according to its original capacity, to set back the water. (Mertz v. Dorney, 25 Penn. St., 519.) The measure of the prescriptive right is the extent of the land actually flooded.
The case, when summed up, amounts to this: The plaintiff must rely upon his specific grant. This does not authorize him to change the location of his dam. He cannot claim by prescription for two reasons: First, because that doctrine does not apply where the use substantially follows the grant. Second, because the use has not been shown to be continuous in such a sense that the water has been kept up for twenty years to the hight to which the new dam now sets it back.
The judgment of the court below should be affirmed.
All concur with LOTT, Ch. C., except DWIGHT, C., dissenting.
Order reversed, and judgment on report of referee affirmed.