This is an action of tort, in which the plaintiff alleges that the defendant entered upon his close, and raised the *394gates of his water dam situated thereon.- The defendant justifies as servant of Allen S. Yale, who is the assignee of a mortgage of a mill and mill site on the stream below the plaintiff’s close, and who, he alleges, has a right to cause the gates to be raised for the purpose of working his mill.

It appears that the plaintiff is the owner of the close on which the dam is situated, and also of a saw-mill on a close below the same, and below Allen S. Yale’s mill, and that the dam in question was built for a reservoir dam and is used by the plaintiff as such.

Allen S. Yale holds his mill and privilege on the stream below, under a deed from Moses Barnum to Sewall Sergeant, dated November 4, 1823. This deed conveys a tract of land on the stream, described by metes and bounds, and estimated to contain forty rods of land, together with the right to erect a dam thereon, and flow the land above by means of it. But there is nothing in the terms of this deed that can be construed to include a conveyance of the right to use the reservoir dam above, even if the grantor had a title which he could convey. This land and privilege were afterwards conveyed by Sergeant to Loring Barnum and Henry Lincoln, and they mortgaged it to Catherine M. Sedgwick, Deéember 10, 1834. The mortgage refers to the deed of Moses Barnum to Sergeant for a description of what it conveys, and of course it conveys nothing more Allen S. Yale holds this mortgage by. assignment.

The defendant offered evidence tending to show that the stream below the reservoir dam is very small, and runs down a steep hill; and that between Allen S. Yale’s mill and the reservoir dam there is no place where the water can be collected into a pond sufficient to drive Yale’s mill for a longer space of time than a few hoursand he contends that the reservoir dam is therefore necessary for the profitable working of Yale’s mill, and that the right to take water from the reservoir dam is thus annexed to Yale’s mill by a natural necessity, and is appurtenant thereto. But this doctrine is novel, and none of the cases cited give countenance to it. Sewall Sergeant took the stream as it was ; and his right to use it is clearly defined in his deed. *395The deed, and not his subsequent convenience or necessity, is the measure of his rights.

After Sergeant’s purchase, namely, November 5, 1823, an agreement was made, under seal, between him and Loring Barnum, a son of Moses, who then owned the lot on which the reservoir dam stands, and also owned the saw-mill now owned by the plaintiff, by which the parties agreed to erect the reservoir dam for their joint accommodation and use. The dam was erected and used by them under this agreement. On the 5th of October 1834 Sergeant conveyed to Loring Barnum and Henry Lincoln the same premises which had been conveyed to him by Moses Barnum. Loring Barnum being still the owner of the upper site, this sale practically annulled the agreement of November 5,1823, and no rights derived from it were mortgaged to Catherine M. Sedgwick. The agreement therefore is not material to this case.

The defendant contends that the use of the reservoir dam by the mill owners, ever since its erection, creates a title in Allen S. Yale, under the mortgage to Catherine M. Sedgwick. But as the right to its use was not conveyed to her, such a user, to be available to Yale, must have been adverse to the owner of the dam, and Yale must have the title of the disseisors in himself. But he fails to connect himself with the title under which it has been used; and therefore it is not available to him.

The deposition of Oliver Partridge, taken in perpetuam, at the request of Loring Barnum and Henry W. Thompson, May 29, 1840, they being then the owners, respectively, of the upper and lower sites, was offered in evidence and rejected. It appears that this deposition was taken to perpetuate evidence against the land owners above the reservoir dam, as to the right to flow the lands by means of the dam ; and it contains nothing in reference to the rights of the mill owners below, as between themselves. Its rejection was proper. Exceptions overruled.'