The deféndants are the owners of a tract of land on the east side of “ New Found Creek,” and wishing to •erect a mill thereon, procured the plaintiff to execute a deed, to the effect that in consideration of §6.00 the plaintiff sells and conveys to defendants a piece of land on the west side of the creek, supposed to contain one acre, more or less. “ The waters of a dam giving twelve feet over the wheel to establish the lines.” (The reporter will set out the deed.)
Accordingly, the defendant makes his dam. The water not coming \ip “ to twelve feet over the wheel,” but it so happens that a different tract of land owned by the plaintiff, situate on the creek about three quarters of a mile above, and separated from his lower tract by the land of another person, is injured by the ponding back of the water by reason of the dam. For this injury the action is brought.
The defendants say the plaintiff is estopped by his deed from complaining of this injury to the upper tract, for by force of the deed, he has a right to raise the water twelve feet over his wheel, and if he cannot enjoy this right without injury to the upper tract the plaintiff must submit to the consequences.
*96We concur with his Honor in the opinion, there is no estop-pel, and no grant of an easement to which the upper tract is servient, either express or implied, by which the defendant acquired a right to cause the water to be ponded back to the injury of' the upper tract.
The deed makes no reference to the upper tract. An injury to it was not foreseen by the parties, and is not provided for. Had the injury been foreseen, the defendant would not have built his dam without seeming an easement, as well on the upper tract as on the intervening tract.
With nothing to depend upon except a deed for the small parcel of land taken off of the lower tract, at the abuttment of the dam, the quantity of land “to be established by the waters of the dam, giving twelve feet over the wheel,” the defendant builds his dam and finds, contrary to all expectation that the upper tract is injured. To meet this emergency he was bound to do one of three things, agree with the plaintiff and get a grant of an easement in respect to the upper tract, or if the injury was caused by the'“big log and drift wood and mud, &c., set out in the answer, which obstructs the channel of the creek, have the raft removed and keep the channel clear, or if the injury is the result of a natural cause, to-wit: there is not fall enough in the creek to allow the dam to be kept up to its present height, then lower the dam, or take it away,- if the mill cannot be run with a less head of water.. The defendant was obliged to do one of these three things or violate the maxim, “ Use your own so as not to abuse the property of another,” which is a- corrollory from the diverse rule, “Do unto others as ye would they should do unto you.”'
| The brief of the counsellor defendant refers to Merrimon v. Russel, 2 Jones’ Eq., 470; Whitaker v. Garner, 3 Jones, 171. These are interesting cases on the question when the land passes, and where only an easement, but do not bear on our question, which is, on what ground can an easement to-pond water back to the injury of the upper tract be implied. *97from a deed for a parcel of tbe lower land % . The quantity to be established by the water mark at twelve feet over the wheel.
Upon consultation among the Justices, it was suggested, may not the grant of an easement to pond the water on the upper tract be implied from the fact, that otherwise the defendant will not be able to enjoy the benefit of the parcel of land conveyed in as full a measm-e as the parties contemplated. Reply : This result was not foreseen or provided for by the parties to the deed, and the court cannot add to its provisions.
It occurred to me in writing out the opinion, how can our case be distinguished from the case of one who buys one acre in the centre of a ten acre tract ? It is settled that the purchaser has a right of way by implication, ex meces Unte, doing as little damage as may be. Upon reflection, I am satisfied that his Honor made the true distinction. In the instance of the one acre in the centre of a ten acre field, the need for a right of way was patent, and ex me cenital-, the grant of a right of way is implied. In our case the need for an casement to pond the water back upon the upper tract was not patent, but so far from it, the injury to the upper tract by the ponding of the water was unexpected and took both parties by surpiise. So in the absence of an express grant of the easement, the court cannot imply one.
No error.
Pee Cueiam. Judgment affirmed.-