The opinion of the court was delivered, May 25th 1871, by
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 contain the grant of *100an 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 an absolute denial of the right, followed by an enjoyment inconsistent with its existence for a period of twenty-one years or more, can amount to an extinguishment of it. In St. Mary’s Church v. Miles, 1 Whart. 229" court="Pa." date_filed="1836-02-03" href="https://app.midpage.ai/document/trustees-of-st-marys-church-v-miles-6313842?utm_source=webapp" opinion_id="6313842">1 Wharton 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 do'es 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 anything 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 Butts v. Ihrie, 1 Rawle 218" court="Pa." date_filed="1829-03-27" href="https://app.midpage.ai/document/butz-v-ihrie-6314284?utm_source=webapp" opinion_id="6314284">1 Rawle 218 ; Nitsell v. Paschall, 3 Ibid. 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, disseised, obstructed or prevented by some wrongdoer 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 Whisler, dated April 17th 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 agreement to contribute in equal proportions to the maintenance and repair of the dam. In this respect the plaintiff in error has no cause to complain of the answers of the court below. Certainly *101mere 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-",er or non-claim. If I have a right of way by grant or reserva- •, I can surely give evidence that I have claimed and used it nout denial or obstruction by the occupant of the land. This evidence is not to make out a right against the landlord from acquiescence by the tenant in the use or enjoyment of the property adverse to his title. This certainly the acts or declarations of the occupant or tenant are incompetent to effect, and are therefore in such a case inadmissible; but this rule does not apply where the object is to meet and disprove the assertion that a right depending upon express grant has been lost or abandoned. The distinction between these two cases is very apparent. So too it was totally immaterial whether the amount of the water in the dam was suf*102ficient, if the dam had not leaked, to run both mills; and even if it had been, upon the supposition that the jury might find that the plaintiff had refused to repair upon demand, of which however there seems to have been no evidence to go to the jury, the mode proposed to prove it was entirely inadmissible. The fact that mills higher up the stream were run with a less amount of water would have introduced questions entirely collateral and irrelevant as to the mills on the Conodoguinet from its source to its mouth. The plaintiff below was entitled by the agreement of 1820 to half of the water in the dam, not merely to so much as was necessary to run his mill: the parties had wisely precluded all dispute.on that subject by making the grant perfectly definite. When he was denied and disturbed in the enjoyment of that right to his injury by the act of the defendants in actually taking and using more than half, s'o that necessarily, half was not left for him, it was no answer to say that he had as much as he needed to run his mill. In point of fact, the injury he suffered and for which he recovered damages, was that he had not as much as was necessary for that purpose.
The remaining errors relate to the form of action. It is contended that it should have been covenant on the agreement of 1820. But here there is a very plain distinction to be taken. Had there been in that agreement a covenant by Rupp, for himself, his heirs and assigns, not to take more than half the water in the dam, there might have been some plausibility in the contention that he must resort to his remedy upon that. But there is no such covenant in the instrument. The covenants relate to the construction and repair of the dam and in regard to an application for a private road. Upon the breach of any of these covenants the remedy would have been by action of covenant upon the agreement. But in regard to the easement or privilege of Whisler, his heirs and assigns, to take and use one-half of the water, it was a direct grant, not a covenant. “ And in case the said John Whisler, his heirs or assigns, should erect a mill, they shall be at liberty to use one-half of the water in the said dam.” No one has ever supposed before, that upon a grant by deed of an easement or privilege upon land or land covered with water by one man to another, the remedy for a disturbance of such easement or privilege was an action of covenant upon the deed. Take a common case of the grant or reservation of a right of way. Surely an action on the case may be maintained by the grantlr for the obstruction of it, as well against the grantee and those claiming under him as against strangers. The books are full of such eases in which no such point was made: Watson v. Beiren, 1 S. & R. 227; Kinkham v. Sharpe, 1 Whart. 383; Jamison v. McCredy, 5 W. & S. 129; Van Meter v. Hankinson, 6 Whart. 307" court="Pa." date_filed="1841-02-20" href="https://app.midpage.ai/document/van-meter-v-hankinson-6314221?utm_source=webapp" opinion_id="6314221">6 Whart. 307; Ebrier v. Sticther, 7 Harris 19. But, contends the counsel for the plaintiffs in error with great ingenuity, the grant to Whisler of one-half *103of the water is an implied covenant that the grantor will not take the other half. True, it is so, in popular language, but that does not constitute a technical covenant. In the grant of a right of way or common in the grantor’s land, there is the same implied covenant by the grantor that he will not disturb its enjoyment. But that, as we have seen, does not prevent the plaintiff from resorting to an action on the case to recover damages for its disturbance.
Judgment affirmed.