Lindeman v. Lindsey. restriction as to time and quantity, then they had acquired a right to an unrestricted use of the same, and the verdict should be for the defendants. Answer. "As a legal proposition this point is correct. A use of a privilege for twenty years will, in law, raise the presumption of a grant. But, in this case, there is a written agreement defining the rights of the parties. By that agreement each party was entitled to one-half of the water in the dam. The evidence shows, we think, that defendants' mill required more water to operate it than the plaintiff's mill. If, prior to the use of the water of the stream in 1869, of which plaintiff complains, both parties had sufficient water for the use of their respective mills, and Lindsey, and those under whom he claims, had a sufficiency of water for the use of their mill, and received no injury by the owners of the opposite mill using more than one-half of the water, this would not confer on Lindeman, or those under whom he claims, a right to use more than onehalf the water; if, in doing so, the mill of Lindsey was injured by reason of defendants appropriating more than half the water to the use of their mill. A party cannot be deprived of a right by not complaining before he has been injured by a deprivation of the right." 5. If the owners of defendants' mill have been in the habit of using, for twenty-one years and upward, prior to the commencement of this suit, all the water needed for grinding wheat and running their machinery, irrespective of the stage of the water, then plaintiff has no reason to complain of defendants, if, during the year 1869, they used no more water than necessary for this purpose, although they ran their mill both night and day. Answer. "We cannot answer this as requested, for the reason stated in our answer to the fourth point." 6. If the jury believe that, for a period of twenty-one years prior to the commencement of this suit, the owners of the two mills, plaintiff's and defendants', were in the habit of using, without complaint, all the water that they needed, or that they could get upon their wheels, and at such times as they needed it, or as the pressure of business required it, then neither has a right to complain of the other, if at any time he should use more than half the water in the dam, so long as the natural channel of the stream is not interfered with, nor a greater amount of water taken by either than he Lindeman v. Lindsey. has been in the habit of using during the said period of twenty-one years. Answer. "We cannot answer this as requested. If neither party was injured by the manner in which the water was used until shortly preceding the time when this suit was brought, a party cannot forfeit a right by not complaining before he is injured." 7. The undisputed evidence in the case, and the evidence of the plaintiff himself is, that, for a period of twenty-one years, prior to the bringing of this suit, both mills have been in the habit of running at such times as their business required it, night and day; and, therefore, each has now the right to run as his business requires, and no cause of action will accrue to either party if, during a time of low water, one should be compelled by his business to run night and day, and thus take more than half the water in the creek. Answer. "We cannot answer this point as requested, for the reasons stated in our answers to the former points. The evidence referred is for the jury." The verdict was for the plaintiff for $75. The defendants took a writ of error, and assigned errors, viz.: 1 and 2. The rulings as to the evidence. 3-5. The answers to the plaintiff's points. 7-13. The answers to the defendants' points. S. Hepburn, Jr., for plaintiffs in error. Covenant and not case was the proper and only remedy upon the agreement between Whisler and Rupp. Angell on Water-courses, § 441; Wilbur v. Brown, 3 Denio, 356; Luckey v. Rowzee, 1 A. K. Marsh. 295; Savage v. Mason, 3 Cush. 500. The rights of the partics were not fixed by that agreement. Long usage could alter or modify it as well as destroy it; and the fact, whether there had been such usage, was for the jury. Strickler v. Todd, 10 Serg. & Rawle, 69; Richards v. Elwell, 48 Penn. St. 361; McCallum v. Germantown Water Co., 54 id. 59; Angell on Water-courses, §§ 135, 428, 429, 432; Young v. Spencer, 10 B. & C. 145; Hobson v. Todd, 4 Term R. 71; Pastorius v. Fisher, 1 Rawle, 27. If the water in the dam was wasted by the mutual negligence of the parties, both were contributors to their own injury, and neither could recover. Catawissa Railroad v. Armstrong, 49 Penn. St. 193; Little Sch. Nav. Co. v. Norton, 24 id. 469. The offer of plaintiff was not evidence for any purpose, and that of defendant was proper in answer to plaintiff's evidence. The court Lindeman v. Lindsey. should not have determined the fact in answer to defendants' fifth point, and should have answered the question of law presented in it. Angell on Water-courses, § 100. W. M. Penrose and Henderson & Hays, for defendant in error. As to the form of action. McCall v. Forsyth, 4 W. & S. 179; Nickle v. Baldwin, id. 290; Smith v. Seward, 3 Penn. St. 342; Ingles v. Bringhurst, 1 Dall. 346; Marlin v. Willink, 7 Serg. & Rawle, 297, 298; Findlay v. Keim, 62 Penn. 112. SHARSWOOD, J. Seven points were presented by the plaintiff in error to the learned judge below, and thirteen errors have been assigned here. All these assignments may be disposed of by the consideration of two questions, neither of which seems to us to present any serious difficulty. The first is: What was the legal right of the plaintiff below? And the second: If his right was infringed, did he adopt the proper form of action as his remedy to enforce it? Every other question in the cause appears to have been a question of fact for the decision of the jury and properly submitted to them. When the proprietors of two opposite banks of a stream of water are desirous of enjoying the advantage of the water-power for propelling machinery, a dam for that purpose cannot be built, except by mutual consent, unless, indeed, it may be what is termed a "wing-dam," confined to the soil of the person who erects it, or that half of the bed of the stream which belongs to him. If erected by either, on the land of the other, it would clearly be a trespass, and could lawfully be abated by him upon whose land it was built without his consent. When, therefore, they enter into an agreement to erect such a dam, with a covenant for themselves, their heirs and assigns to repair or rebuild it if necessary, it is not a personal covenant merely, but runs with the lands of the respective proprietors, and the stipulations contained in such agreement, in respect to the enjoyment of the water-power created by the dam, form the basis of their respective rights. It is sufficient to refer to Jamison v. McCredy, 5 W. & S. 229, as a case entirely parallel if not in point. If the instrument contains the grant of an easement or privilege to either party in the land or the water, against such a grant, there is no statute of limitation without actual hostile and adverse possession, and certainly no prescription or presumption from mere non-user. Nothing less than VOL. VIII. - 29 Lindeman v. Lindsey. an absolute denial of the right, followed by an enjoyment inconsistent with its existence for a period of twenty-one years or more, car amount to an extinguishment of it. In St. Mary's Church v. Miles, 1 Whart. 229, it was decided that, in the case of the reservation of a ground-rent by deed, no length of possession of the land, without payment of the rent, would raise the presumption that it had been released or extinguished. "Although it may be," said Mr. Justice KENNEDY, "that the law will, in some cases, presume a grant in support of a right which has been exercised and enjoyed by a person, without objection or interruption, to the exclusion of all others, for a period of twenty years or more, yet it does not follow that it ought to make such a presumption, in order to defeat a person of a right created by deed and not controverted, without any thing being shown to have taken place in the conduct of the parties interested or concerned in the right that was inconsistent with the existence and enjoyment of it." To the same effect is Butzs v. Ihrie, 1 Rawle, 218; Nitzell v. Paschall, 3 id. 82. It is entirely in accordance with reason and the fitness of things that such should be the law. A man ought not to be obliged, unless he requires it, actually to use a right or privilege secured to him by deed, nor to resort to legal proceedings unless his title is denied, and he is actually ousted, disseized, obstructed or prevented by some wrong-doer from an enjoyment of it when he requires and demands such enjoyment. Hence, the learned judge below was perfectly right in his answers to the points of the plaintiff in error, so far as they set up a title by prescription in him, arising from the mere non-user by the grantor, or those claiming under him, of the right secured by the agreement between the former owners, Rupp and Wisler, dated April 17, 1820. If the plaintiff below had ceased to require the water at all, if he had abandoned the use of his mill entirely, and the defendant and those under whom he claimed had enjoyed all the water for any period of time, without denial of the right under the agreement or repudiation of its existence and obligations, he could resume his right at any time, certainly as long as his mill was there. On the other hand, the opposite party could acquire nothing by prescription, contrary to the terms of the agreement under which the dam was built, and was to be repaired and maintained. It would, perhaps, make a different case if the plaintiff below or those under whom he claimed had refused to perform their part of the agree ment to contribute in equal proportions to the maintenance and Lindeman v. Lindsey. repair of the dam. In this respect, the plaintiff in error has no cause to complain of the answers of the court bel v. Certainly mere neglect to do so, much more when both parties are equally negligent, would not cause a forfeiture of the privilege or easement vested by the deed. It is an entirely different case from that of an injury arising from negligence or other wrongful act, where, if in an action to recover damages, any concurrent negligence which at all contributed to produce the injury appears in the plaintiff, he can recover nothing. The covenants to repair were mutual; either party could repair and sue the other for contribution. The defendants could show that they had called on the plaintiff to repair, and he had refused or neglected after such demand. So the learned judge instructed the jury in his answer to the plaintiff's first point. The agreement secured to the plaintiff one-half of the water in the dam, much or little, unless it was reduced by his own fault. The joint erection and maintenance of that structure could be referred to nothing but contract. There was no right to build it, or obligation to maintain it, independent of contract. The contract of the parties, then, was the law of its use and enjoyment. The learned judge below was, therefore, entirely accurate in his instructions to the jury, contained in his answers to the several points of the plaintiff and defendants which have been assigned for error, so far as they relate to the plaintiff's title to the free and undisturbed use and enjoyment of one-half of the water in the dam in question. It is unnecessary to examine them separately and in detail, as the application of the principles to which we have referred will evince, we think, that the assignments of error cannot be sustained. The same principles show also that the learned judge was right in his rulings upon the admission and rejection of evidence, which were excepted to and form the subjects of the first and second assignments of error. It was competent for the plaintiff to prove that he had made a demand for the enjoyment of his right when obstructed, and that it had been yielded by the occupant, whether owner in fee or tenant. It was like an entry to toll the statute. It interrupted. the prescription set up by the defendant. It was in disproof of the pretension that he had lost his right by non-user or non-claim. If I have a right of way by grant or reservation, I can surely give evidence that I have claimed and used it without denial or obstruction by the occupant of the land. This evidence is not to make out a right against the lordlord from acquiescence by the tenant in the |