When the plaintiff below purchased the lots between the dam and the mill, including the old channel of the creek, it was apparent to his eye that the vendor had appropriated the whole stream to his mill, and that he did not intend to part with a drop of it. Why should he do so to the ruin of his property ? All the water that was suffered to escape into the old channel, leaked through the dam, which was old and defective ; but the vendor had no right to suppose that this was a natural, and therefore to be a permanent, state of things. He might as well suppose that a wash-gate, accidentally drawn at the lime, was never to be shut *443down. That he did not expect to derive his supply from the creek, is evident from his covenant-right to water his cattle at the race ; an easement that would have been unnecessary had the vendor precluded himself from turning the whole stream into it. He, however, built a new dam, and the complaint is that it is better than the old one, which let part of the water escape and decreased his power. But he never intended to relinquish what would render his mill useless in particular seasons. The principle adopted by the judge, therefore, was not the proper one, for the defendant was entitled to the exclusive use of the stream.

Judgment reversed,