The decision of the case depends upon the construction to be given to the deeds, by virtue of which the parties hold their respective rights and interests in the water privilege, and the use of the water in question. They both hold under deeds from R. V. R. Horton, who conveyed to the defendant, November 5th, 1855, about five acres of land, on which the grist mill, stone dam and flume were situated, “ with the right to control the water for the purposes of a grist mill to the top of a certain stump of a tree standing in the water near the old flume and in or near the dam of said old flume and the said Alonzo (the defendant) is to keep the present dam in good repair at its *689present or original height; reserving to myself and heirs the right of drawing water from the stone dam or flume not to interfere with the grist mill privileges in any shape or way for any purpose I may think proper until the water is drawn down to the top of a stump formerly called low water mark.”

Said Horton, September 20th, 1856, conveyed to the plaintiff the saw mill premises, depending for water on the same source as said grist mill, situated below said grist mill, and further from said dam and flume, “ together with the right of drawing water for the use of said saw mill or other machinery attached thereto from the stone dam or flume at the outlet of the pond above the grist mill until the water may be or shall settle to the level of the top of a certain stump standing in the water near the old flume formerly called lo,w water mark, said water to be drawn and used for said saw mill and any other purpose not inconsistent with water privileges heretofore granted,” etc.

It is obvious that Horton conveyed to the plaintiff the rights and privileges which he had reserved to himself in his deed to the defendant. The plaintiff concedes that he stands solely on the rights thus reserved.

For the purpose of exercising and enjoying, in the service of his saw mill, the right of drawing the water “until it is drawn down to said low water mark,” he inserted a gate in the side of the flume, the bottom of which is twenty-one inches below said low water mark, but is five feet above the bottom of the flume. Through this gate he attempted to draw water for the use of his saw mill.

The defendant, denying the plaintiff’s right to insert a gate below the level of said low water mark, shut off, by a head gate, the water from the flume whenever the plaintiff undertook to draw water through the gate thus inserted into the flume by him.

The defendant claims that he has the exclusive right to all the water, as a mass, that lies below the level of said low water mark, and that the plaintiff has the right to use only from the upper stratum, limited downward by said low water mark; and, therefore, that when the plaintiff, through his gate, draws water that lies below said low water mark, he takes specific water that the defendant has the exclusive right t.o.

*690On the other hand, the plaintiff claims that he has the right to take water from the dam or flume in any way to serve his purposes, till the water shall have settled to said low water mark, provided he does it in a way “ not to interfere, with the grist mill privilegesthat the defendant’s right is not to he gauged from the bottom upwards to low water mark, and that it becomes an exclusive right to any particular water only when the water in the pond shall have settled to said low water mark.

It can hardly be doubted that while the deed to the defendant was designed to convey to him an unimpeded grist mill privilege, and to that end an exclusive right to the water after it should have settled to low water mark, the reservation in the same instrument was designed to secure to the grantor the free use of the water when above the said mark, subject only to the provision that such use should “ not interfere with the grist mill privileges.” "We deem the language of the deed to the defendant, both in the granting part and in the reservation, in its ordinary sense and force, to be quite explicit to this effect. To give it a different meaning would seem to require a forced construction in contravention of settled rules.

If the language rendered doubtful the force and effect to be given to the conveyance and the reservation, it would obviously be the duty of the court to make such a construction as would at the same time secure to the defendant the full beneficial use of the grant to him, and render the reservation as beneficial to the party making it as it could be. In our opinion the construction claimed by the defendant would tend greatly to impair the usefulness of the reservation, while it is not evident nor does it seem probable that such a construction is necessary in order to ensure to him the full beneficial use of his grist mill privileges. Whether so or not cannot be determined as matter of law upon any known principles of hydrostatics or hydraulics. Whether the gate as it was inserted by the plaintiff would interfere with the use of the grist mill privileges must therefore rest as a question of fact, to be determined by a jury, under proper instructions, in a case properly before them on that point. Unless it would so, then upon the construction we now give to the deeds in question, it would be a violation of the plaintiff’s rights for the defendant to shut *691off the water from the flume, while it was above low water mark. And even if it would thus interfere, it may be questionable whether the defendant would be warranted in resorting to such a mode of preventing it.

The views thus expressed imply what in our opinion should be the effect of the terms of the grant and reservation in the deed to the defendant, viz: that the gristmill p-miejes have precedence of those of the saw mill, when necessary for their reasonable enjoyment, in respect to the use of the water when it is above low water mark ; but that the defendant would be bound to exer* cise his right in that respect in a manner not needlessly to interfere with or impede the beneficial enjoyment of the water by the plaintiff for the use of his saw mill. Down to the point of inter, fering with “the privileges of the grist mill” when reasonably exercised, we think the plaintiff has the right to the free use of the water in common with the defendant, for all the purposes falling within the scope of said reservation, when it is above said low water mark.

The result is that the judgment of the county court is reversed, and the case remanded,