The opinion of the Court was delivered by
Weston C. J.When this case was under consideration on a former occasion, the construction of the deed of July, 1818, from Josiah Little to William Sprague, was settled, without reference fo any prior deed. Same case, 17 Maine R. 281. We see no reason to change the view we then took of the rights of the parties, so far as they depended upon that instrument. In the agreed statement of facts now before us, a new deed is presented, that of Moses Little to William Sprague, dated Sept. 13, 1783. It remains to be determined, whether the complaint can be sustained, both deeds being considered together.
The deed from Moses Little conveyed two lots of land, which included the mill privileges in question, with a saw and grist mill, then standing on the premises. The deed, however, contained a reservation in these words : “ Excepting and reserving out of the same, the one half of the grist mill and saw mill, built by said Sprague on said lots, together with one half of all the privileges appertaining to the said mills, as the improving of a mill yard. Also, said Sprague has a right of raising a head of water, at all seasons of the year, not damaging the owners of the land above ; as also said Little reserves to himself.” By the owners of the land above, must be understood, other owners. It was a clause introduced by way of precaution, intended to protect Little from any implication, that he might be held answerable to other owners above, by the head of water which Sprague might raise. If it had intended to apply to the lands of the grantor, the language would have been, without doing damage to my other land, or that of any owner above. To construe the words as they stand to *347include the grantor’s land, would leave the clause, expressly granting to Sprague the right of raising a head of water, at all seasons of the year, without legal effect. He had a right to flow the lands, passed by tiiat conveyance, without the license of the grantor. To give that license any sensible meaning, it must be held to apply to the grantor’s other lands. The meaning of the other part of the reservation is, that Little, as to his half of the privilege, was to have the same right to flow the contiguous land conveyed, as Sprague had Little’s other land, which he retained.
Upon this construction, which wo arc satisfied must be the true one, Sprague derived the same right from that deed, which it was before decided he did from the deed of Josiah Little of the other half of the mills and privilege, which his father, Moses Little, reserved. In the last deed, the land, which Sprague might flow, is more explicitly limited to the land of Little. Josiah, the son, besides being privy in estate, was conversant of his father’s previous conveyance, having witnessed the deed ; and he was well aware that Sprague had a right to flow the Little lands, and was equally desirous to avoid any implication, that he was to be liable to others. According to the agreement of the parties, the complaint is to be dismissed, and the surviving respondent to be allowed his costs.