1. "We clo not go into the evidence in this case. The judge below was, himself, satisfied that the verdict was excessive, and has put the plaintiff below upon terms. We find some difficulty, it is true, in discovering what rule the judge adopted in finding how much ought to stand and how much ought to be written off. We cannot, however, refrain from saying *247that, as the facts appear in the record, it is impossible to agree with the opinion of the witnesses that the dam caused the overflow above the riffles and running water, and almost all the witnesses say, there was- running water and riffles below the overflow in the upper field. How a dam can back water beyond and above a current, we do not see, unless the water is governed by some laws peculiar to “No Business” creek.
2. But our judgment of reversal is upon what, in our opinion, was an error in the charge of the court. This mill, and a dam to raise the water to run it, was built by old Mr. Lee, the original proprietor of the land owned by both par* ties. At his death it was sold at administrator’s sale, in two parcels, on the same day. The rule is well settled that the vendee of the mill tract got all the easement of the mill and dam, got the right to flow water, as the dam was capable of flowing it, and that the adjoining land went to the purchaser of.it with that servitude upon it: See Washburn on Easements, 43, 60, where this whole doctrine is discussed. The rule seems equally well settled that the capacity of the dam from its height is the measure of the easement. Sometimes a new dam leaks greatly, sometimes a dam gets out of repair and leaks, sometimes the use of the water, by night and by day, or with a peculiar wheel, keeps the water at a low ebb; and these failures to use a dam to its full height continue for years. But the doctrine seems to be well settled, that the right of the mill Owner is not lost by the leakiness of his dam, or by the steady and constant use of the water. He has a right to repair his dam or build a better, though not a higher one. He has a right, too,'by the use of better wheels, or by doing less work, to save his water, and if iri either of these ways the water in the dam is kept at a higher point, and the back-water is carried higher up the stream, he is still only using the easement he bought and of which the other vendees had full notice, by the height of the dam: Conell vs. Thayer, 5 Metcalf, 253, 258; Alder vs. Savill, 5 Taunton, 454; Lacy vs. Arnett, 33 Penn., 169; 29 N. Y., 354. And we think this a fair and reasonable rule, one tending to en*248courage improvement, and one doing no harm, as the height of the dam and its efficiency, are matters the other vendees might easily know and take into consideration on their purchase. Under the charge, of the court, the plaintiff in error was confined to the flow of water, as it usually flowed, though there was testimony that the old dam leaked badly, and that the new dam was no higher than the old one. It seems to us absurd to say that the purchaser of the mill tract, had no right to repair the dam, however long it might have been out of order, and that he was driven to build a new dam of the same inefficiency. We think, under the evidence, the ■jury might have found differently, had what we take to be the true rule on this subject, been submitted to them, and for this reason we reverse the judgment.
