Bull v. Valley Falls Co. ( 1864 )

Ames, G. J.

Tbe plaintiff, as tbe successor to tbe rights of Stephen H. Smith, "has, under tbe reservation in Smith’s deed to Jenkins & Man, of tbe Mott dam and tbe land about it, an easement to conduct tbe water by a drain from bis watered meadow through said land and dam, to tbe river below; and were it not for tbe “ mill act,” as it is called (Ob. 88, of tbe Be-vised Statutes), we should not hesitate, upon tbe proof in this case in support of tbe allegations of tbe bill, to enjoin tbe defendants from tbe destructive waste of backing water upon tbe meadow, and into tbe drain which relieves it when irrigated, as quite within tbe jurisdiction of a court of equity, and as the appropriate relief to be afforded by it. Tbe utmost effect, however, that we can give to tbe above reservation is, that it constitutes tbe plaintiff owner of such an easement, for tbe benefit of bis watered meadow. Neither tbe meadow nor tbe easement are a part of bis mill privilege, nor protected against tbe right of tbe defendants as owners of tbe Manville privilege below, to flow both tbe meadow and tbe drain, under tbe provisions of tbe mill act, subject exclusively to tbe remedy provided by it. To this remedy we must remit tbe plaintiff; and as those portions of tbe bill which relate to tbe abandonment by tbe defendants of tbe Mott dam, and tbe acquisition by tbe plaintiff of rights by user to place bis mill wheels lower, as against it, are not supported by tbe proof, we must dismiss this bill, with costs.