Ilis Honor charged the jury: “It is conceded by both parties that William Anderson owned the lands in controversy, and that partition was had between his heirs, to one of whom section 9 was assigned, including the mill on Hunting Creek, and without giving a description of the land assigned it to O. L. Anderson. This provision is added to the general description-: Ho as to include full power of the mill shoal and water power on both sides of the mill pond, so as to keep it in repair to convey water to the mill.’ If you find from the evidence, by ils greater'weight, that at the time the partition was had, and therefore while William Anderson' was the owner of all the lands set out in the partition proceedings, and the owner of the mill, that water was brought from Rocky Creek into the mill pond as a part of the water power necessary for running the mill, that the water power was included in the partition proceedings and assigned to C. L. Anderson, who was to be the owner of section No. 9, and if you should so find, then you will inquire whether the defendant has diverted the water from that course so as to lessen the water-power used by Anderson, and in contemplation of the Commissioners at the time they made the partition.”
*291The defendant excepted, but we find no error. The jury found that the defendant had wrongfully diverted the water, and wrongfully refused to allow the plaintiff to convey the water from Rocky Creek, to his damage $100.00, and that the plaintiff had maintained his dam at a height greater than the mill dam was at the time of the partition, thus overflowing and sobbing defendant’s land to his damage $100.00. The Court thereupon adjudged that “the plaintiff is entitled to the use of the same amount of water as was usual to run through the artificial channel from Rocky Creek to the head of the mill pond of plaintiff, when a dam or obstruction was in the creek at the head of the •channel, at or prior to the date of the partition of the lands of AVilliam Anderson, and such amount of water as was used by the said William Anderson, and the plaintiff shall have a right to enter upon the lands of the defendant for the purpose of. keeping open the artificial channel used for diverting water from Rocky Creek to the mill pond,,and also for the purpose of keeping such dam or obstruction in the creek as will cause the water to flow through the artificial channel in such quantity as was used by William Anderson during his lifetime, for -the purpose of furnishing power to the mill. It is further ordered and adjudged by the Court that the plaintiff recover of the defendant the sum of one hundred dollars for damages for the wrongful diverting of the water from the mill pond of the plaintiff’s mill. It is further considered and adjudged by the Court, that the jury having found that the plaintiff is maintaining his dam in excess of what it was at the date of the partition proceedings, and that by reason of said dam being raised and so maintained the land of the defendant has been sobbed, it is therefore considered and adjudged by the Court that the defendant recover of the plaintiff the sum of one hundred dollars for all damage — past, present and prospective, by reason of the raising of the dam to its present height, both parties consenting that the amount named should *292be for all damages. It is further considered and adjudged by the Court that the plaintiff recover cost of the defendant in his action.”
The defendants except, because the jury did not find how much water from Rocky Creek William Anderson was accustomed to use, but they submitted no issues or prayers on that subject. The contest was whether the plaintiff liad an easement to use the water as William Anderson had done. There was no demand to more particularly specify its extent. The easement was to use enough water from Rocky Creek, added to that from Hunting Creek, to “include the full power of the mill shoal and water power on both sides of the mill pond” at the height of the dam when the mill was used by AVilliam Anderson, and now by this verdict, and with the consent of parties as expressed in the judgment, the “full power” is what is required to run the mill with the dam at its present height. If the. plaintiff should seek to use more water from Rocky Creek than is reasonably necessary, .and shall waste it by running it over his dam, the defendant by proper pro? ceedings can have the extent of the easement more accurately measured and defined, unless the parties by themselves, or by friendly arbitration, shall agree upon what is an adequate but not excessive enjoyment of the easement, which they should be able to do, now that the legal questions involved are-determined.
No error.