land sufficient for a mill-pond,1 and a right of flowing land so far as may be necessary,2 words in a grant that are effective to pass being equally effective to except. If the exception is for so long "as the said grantee occupies said privilege with mills," the existence of the mills marks the limit.4 A reservation of "all watercourses suitable for the erection of mills" gives a right to all the mill-sites on the granted land, whenever the grantor chooses to make a location,5 for all purposes that he may choose, including, however, natural, not artificial, mill-sites. A reservation to a grantor, and to his heirs and assigns, of a certain water privilege for the benefit of his saw-mill, cannot be availed of by a grantee of other land of his, but not of the saw-mill, for any purpose.8 § 313. When the dominant estate and servient estate become united in the person of the same owner, easements in and to the use of water resting upon the latter in favor of the former become extinguished. A natural watercourse, however, which is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as parcel of it, is never extinguished or suspended by such unity of possession.10 If, however, the owner, after unity of possession, does not interrupt existing easements in the use or enjoyment of water, a subsequent grant by him of either 1 Jackson v. Vermilyea, 6 Cowen, 677. In Gregg v. Birdsall, 53 Barb. 402; 35 How. Pr. 345, where there was a reservation for sawing lumber and of flowage for that purpose, the latter right was held co-extensive with the former. 2 Pettee . Hawes, 13 Pick. 323; Vickerie v. Buswell, 13 Maine, 289. & Blake v. Madigan, 65 Maine, 522. 4 Moulton . Trafton, 65 Maine, 218. See Esty v. Currier, 98 Mass. 500; Linthicum v. Ray, 9 Wall. 241. 5 Russell v. Scott, 9 Cowen, 279; Butz v. Ihrie, 1 Rawle, 218. 6 French v. Carhart, 1 Comst. 96. 7 Armstrong v. Masten, 11 Johns. 189. 8 Judd v. Wells, 12 Met. 504. 9 Lady Brown's case cited in Sury v. Pigot, Popham, 166, 170; Palmer, 444, 446; Canham v. Fisk, 2 Cr. & J. 126; Thomas v. Thomas, 2 Cr. M. & R. 34; Ivimey v. Stocker, L. R. 1 Ch. 396, 407; Ritger v. Parker, 8 Cush. 145; Atwater v. Bodfish, 11 Gray, 151; Stevens v. Dennett, 51 N. H. 324, 330 ; Kieffer v. Imhoff, 26 Penn. St. 438, 443; Pearce v. McGlenaghan, 5 Rich. (S. C.) 178; McAllister v. Devane, 76 N. C. 57. 10 Woolrych, Waters, 234; Bul. N. P. 74; Hazard v. Robinson, 3 Mason, 272; Johnson v. Jordan, 2 Met. 239; Tucker v. Jewett, 11 Conn. 311; ante, § 204. estate, or any portion of either, will carry therewith all the water privileges and burdens existing at the time of the conveyance.1 Where the owner of the lower of two mills on a stream lowered his dam, which flowed back the water upon the upper mill, and thus freed the upper mill from obstruction for thirty-eight years, when he sold his mill to the upper owner, it was held that the lapse of time and unity of possession had extinguished the right to again raise the dam two feet in height, and that the upper mill had a right to be kept free from obstruction.2 An upper and lower owner, although occupying the relation of grantor and grantee, must each use the water in a reasonable and proper manner, irrespective of the use prior to the conveyance.3 § 314. Easements which are necessary to the enjoyment of an estate, such as gutters and drains, and are called continuous easements, do not, like discontinuous easements, come to an end by mere unity of possession, but they will revive on severance, like ways of necessity, because they are subsisting easements, provided the necessity for them has not ceased,7 unless the owner during the unity has by some positive act shown his desire to no longer enjoy them. The unity of title and possession, such as will extinguish an easement in 1 Nicholas v. Chamberlain, Cro. Jac. 121; Morris v. Edginton, 3 Taunt. 24; Pyer v. Carter, 1 H. & N. 916; Elliott r. Sallee, 14 Ohio St. 10; Grant v. Chase, 17 Mass. 443; Philbrick v. Ewing, 97 Mass. 133; Seymour v. Sage, 13 N. J. Eq. 439; Perry r. Parker, 1 Woodb. & M. 280; Manning r. Smith, 6 Conn. 289; Dunklee v. Wilton Railroad Co., 24 N. H. 489. See Cary v. Daniels, 8 Met. 466. 2 Hazard v. Robinson, 3 Mason, 272. See Brace v. Yale, 4 Allen, 393. See also Seeley v. Bridges, 13 Neb. 547. 3 Barrett v. Parsons, 10 Cush. 367; Haskins r. Haskins, 9 Gray, 390. 4 Worthington v. Gimson, 2 El. & El. 618; Pearson v. Spencer, 1 B. & S. 571; 3 B. & S. 761. See Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159, 164; Durel v. Boisblanc, 1 La. Ann. 407. 5 Sury v. Pigot, Popham, 166; Palmer, 444; Pheysey v. Vicary, 16 M. & W. 484; Hazard v. Robinson, 3 Mason, 272; Lampman v. Milks, 21 N. Y. 505. 6 Clark v. Cogge, Cro. Jac. 170; Jorden v. Atwood, Owen, 121; Holmes v. Goring, 2 Bing. 83. See Proctor v. Hodgson, 10 Exch. 824. 7 Viall v. Carpenter, 14 Gray, 126; Collins. Prentice, 15 Conn. 39, 423; Pierce v. Selleck, 18 Conn. 321; Seeley e. Bishop, 19 Conn. 128. 8 Copie v. I. de B. 11 Hen. 7, 25; Robins v. Barnes, Hob. 131; Pyer v. Carter, 1 H. & N. 916, 921. See Dodd v. Burchell, 1 H. & C. 113. the beneficial use of water, must be of an estate in fee in both the dominant and the servient tenements in the same person. Thus the possession by the same person of one parcel of land in fee and another for the term of five hundred years, the one of which had an easement for drip in the other; the vesting of two estates in the same person as mortgagee without foreclosure, and the holding an estate in a dock in fee by a defective title, and an easement in the same by a valid title,3 have all been held insufficient to extinguish the easement. If an owner on one side of a stream of half the water privilege is also the owner as a tenant in common of an undivided part of the other half, it is not such a unity of possession as will extinguish in whole or in part the water easement of the tenants in common. If A. enjoys adversely a water easement in adjoining land, and before it ripens into a right conveys to the adjoining owner, who shortly reconveys to A., who again enjoys the easement as before for a period less than, but, with the former period, exceeding the statutory limit, he gains no right to the easement by user, by reason of the former unity of possession in himself.5 An easement in a watercourse may also be extinguished by operation of law, as by filling it up and laying out over it a highway.6 § 315. Tenants in common of watercourses or other water rights may, as of right at the common law, have partition of the whole property so held regardless of the difficulty, hardship, or inconvenience resulting from so doing. This partition need not necessarily be by metes and bounds, although the land covered by water, or used in connection therewith, may be so divided, but the extent of water or water privilege assigned may be marked by visible monuments, noting the rise and fall, by controlling the flowage 1 Thomas v. Thomas, 2 C., M. & R. 34. See Kavanagh v. Coal Mining Co., 14 Ir. C. L. 82. 2 Ritger r. Parker, 8 Cush. 145. 3 Tyler . Hammond, 11 Pick. 193. + Bliss v. Rice, 17 Pick. 23; Atlanta Mills v. Mason, 120 Mass. 244, 251. 5 Manning v. Smith, 8 Conn. 289. 6 Hancock v. Wentworth, 5 Met. 446; Wright v. Freeman, 5 H. & John. 467. 7 Hanson v. Willard, 12 Maine, 142; Smith. Smith, 10 Paige, 470; Morrill. Morrill, 5 N. H. 134. Doan r. Metcalf, 46 Iowa, 120, seems to intimate that partition is confined to cases where " practicable." through gates, by designating the number of inches to which each partitioner is entitled, or by ascertaining in any way the bulk, value, or quantity of water to be used.1 In a partition of land lying on each side of a watercourse between tenants in common, by assigning the land on either side' to each respectively, the dividing line between the two tracts will be the thread of the stream.2 A partition of a dam and the water-power thereby formed will not be made exclusive of the mill and the mill-site to which they are appurtenant.3 An ancient partition into proportionate parts of a water privilege, originally owned by one proprietor, but for a long series of years occupied by different persons in severalty, and transferred from time to time between themselves by deed, levy, or descent, will be presumed, as it has been used, excepting as to what has been disposed of by common consent.1 § 316. In a partition one part of the common premises may be assigned to a party charged with an easement for the benefit of another party, to which another portion was assigned by metes and bounds, as of flowage as the water had been wont to flow back before partition. In a partition of a water-power provision may be made for keeping the various portions of the dam, the water-gates, and the flume in repair, by making it a charge upon the land including them, or by a compensation to be paid by one party to another therefor.7 Water, however, conducted in ditches for mining purposes and owned by tenants in common, cannot, from the nature of the water service to be performed, be mechanically partitioned, a distribution of the proceeds after a sale being the only partition practicable to permanently end the disputes of such tenants in common.8 Equity 1 Hanson v. Willard, 12 Maine, 142; Smith v. Smith, 10 Paige, 470; Morrill v. Morrill, 5 N. H. 134; Cooper v. Cedar Rapids Water Power Co., 42 Iowa, 398. See Kane v. Parker, 4 Wis. 123, 131. 2 King v. King, 7 Mass. 496. 479. 5 Smith v. Smith, 10 Paige, 470, & Hills v. Dey, 14 Wend. 204. 7 Smith v. Smith, 10 Paige, 470; Cooper v. Cedar Rapids Water Power Co., 42 Iowa, 398. 8 McGillivray v. Evans, 27 Cal. 92; Lorenz v. Jacobs, 59 Cal. 262. In the latter case a statement that the parties will intervene to prevent the removal of a dam and the building a new one higher up the stream by a grantee under a deed of partition of a water privilege, the effect of which will be to deprive a co-grantee under the same indenture who was entitled to "six-tenths of the water appertaining to said divided premises," which was construed to mean sixtenths of the water-power, which had been conveyed, as provided in the deed, by a trench to said co-grantee's mill for forty years during which the grantees shared the expense.1 Equity will not order a sale, under a statute, if the whole water-power, in connection with each mill property, would not be worth more than the same power equally divided by a proper partition, the one half to be used with each mill, in the hands of different proprietors.2 § 317. When the privilege is granted of taking water by a pipe of a specified size, it authorizes the taking of all the water which such a pipe would conduct, and it is not an abuse of the right for the grantee to permit the water to flow continuously from the mouth of the pipe, even though it runs to waste. When the quantity of water granted is regulated by the size of the pipe through which it is drawn, it is limited to so much water as will run through the pipe without increasing its head by a dam, but if the right is granted to draw water from any and all springs on the grantor's land, "with the right to conduct the same by aqueduct to said premises for all uses and purposes forever," the grantee is entitled to take all the water from the springs which is in good faith required for use on the granted premises, and to make such reasonable arrangements as are really necessary to enable him to use all the water.1 a as tenants in common held and possessed "a certain water ditch, running from and taking water from creek and "conducting the water of said creek" to a certain point “for mining and other useful purposes," was held to sufficiently allege that the property can be partitioned only by a sale and distribution. 1 Matteson v. Wilbur, 11 R. I. 545. 2 Smith v. Smith, 10 Paige, 470. 3 Bissell v. Grant, 35 Conn. 288. See Paschall v. Passmore, 15 Penn. St. 295. 4 Stevenson v. Wiggin, 56 N. H. 308; Walker v. Stewart, 18 Law Rep. 396. |