Jacox v. Clark , 1 Walk. Ch. 508 ( 1844 )

The Chancellor.

The consideration of the right to use the water, and to dig a race on complainant’s land, was the erection of the mill on that part of defendant’s land lying immediately north of complainant’s. But defehdant has built the mill on other lands belonging to him ; and takes the water directly from the lake, instead of the creek forming the outlet of the lake, and, after using it, carries it by a race into a branch of the Clinton river, instead of returning it into the bed of the creek on complainant’s land. No such right as this is given by the deed. On the contrary, it is inconsistent with, and hostile to the right granted, The two cannot exist and be in operation at the same time, without impairing each other.' Complainant had a right to have the water of the lake flow across his land in its natural course; and, as incident to it, to allow a diversion of the water on such terms and conditions as he thought proper. It is not for this Court, or the defendant, to impose the terms, or to say the present location of the mill is as advantageous to him and his property, as the one indicated in the grant, and had in view by the parties when the deed was executed. I am therefore of the opinion, as the consideration of the grant has wholly failed, complainant is entitled to a reconveyance of all rights granted by the deed of February 10th, 1843, and to his costs. Quick v. Stuyvesant, 2 Paige R. 84. Defendant must also be enjoined from setting up the deed of February 10th as a defence, at law, to any action that may be brought against him for having heretofore diverted the water.

Note. The injunction granted on filing the bill had been dissolved, on the coining in of the answer. See same case, ante 249.