By the Court,
Dixon* C. J.
Understanding that the grist mill power is distinct from that of the saw mill — that it is some miles below and created by a separate dam and reservoir, (facts upon which, by the neglect of counsel, the printed case is not so clear and specific as it should have been,) I fully agree that the representatives of the two Phoenixes deceased — the executor and executrix of the will of Henry,.and the administrator and administratrix of the estate of Samuel, had no power, under the license of the probate court, to convey to Oroswell, his heirs and assigns, “ the privilege of having the • water run through the saw mill gate at all times whenever the saw mill is not running,-the same as though it was running;” nor to covenant that he and they should perpetually enjoy such privilege. The license was to sell the grist mill property, described by metes and bounds, to satisfy the joint debts of Henry and Samuel. No mention was made of the saw mill property, nor leave given to incumber it in any manner whatever. For all that appears or was expressed in the order, it was to re*8main to the free and unimpaired nse of the heirs and devisees. If therefore the representatives had any such authority, it must be upon the ground taken by plaintiffs’ counsel, that the special “ privilege ” was an appurtenance to the grist mill, and as such would necessarily have passed to Croswell by the conveyance, though not expressly named. In support of this position the counsel relies upon what he claims, and what may be admitted, to have been the intention of the Phoenixes at the time of building the dams, that the one at the saw mill should be used as a sort of reserved force or feeder to aid in operating the grist mill, and that the erection of the saw mill was incidental to this main purpose, the design being to employ the surplus power thus created, but in no way to interfere with the utmost possible advantage of water to-the grist mill. He furthermore proceeds upon the subsequent practice of the Phoenixes and their representatives, in conformity to such original intention, which was continued up to the time of the sale to Croswell, and even after, but not*so long as to constitute the foundation of a right by prescription. I cannot agree with the counsel in this position. The right of the owners of the grist mill thus to control the use and flow of the waters at the saw mill, would, if it existed, be an * easement — one of thg,t negative kind described by Professor Washburn, “where the owner of the servient estate is prohibited from doing something otherwise lawful on his estate, because it will affect the dominant estate.” 2 Washb. on Real Prop., 26. Without this privilege on the part of the proprietors of the grist mill, it is one of the common' law rights of the owners of the saw mill to shut their gate and keep back the water when necessary to the reasonable and beneficial use of their mill, due regard being had to all the attendant circumstances. Angelí on Watercourses, §§ 116 to 120; Platt vs. Johnson, 15 Johns., 213" court="N.Y. Sup. Ct." date_filed="1818-05-15" href="https://app.midpage.ai/document/platt-v-johnson--root-5473983?utm_source=webapp" opinion_id="5473983">15 Johns., 213; Cary vs. Daniels, 8 Met., 466; Pitts vs. Lancaster Mills, 13 id., 156. The interruption of this common law right and vesting t in the proprietors of the grist mill, or annexing it to their *9estate, is, in every proper sense, tbe creation of an easement. 2 Washb. on R. P., 25, 26. Once created, such easement becomes appurtenant to tbe dominant estate, a conveyance of wbicb carries with it tbe easement, whether mentioned in tbe .deed or not. Id., 28, 623. “ But in order to pass as appurtenant, there must, as a general proposition, be an existing easement, in tbe technical sense of tbe word, meaning thereby a right to use another's land for special and temporary purposes, in connection with tbe land for tbe use and enjoyment of which tbe right is exercised.” Id., 623.
I take it to be clear, and understand counsel to admit, that tbe privilege claimed is not an appurtenance within the strict and ordinary legal definition of tbe word; that is, that it is not necessary in order to tbe enjoyment of tbe saw mill property, “ that without which tbe grant itself would be of no effect.” Broons’ Legal Maxims, 362. It may be convenient, but it is not necessary. Without it the proprietors have all the rights incident to such an estate, and are subject to the inconvenien-iences, among which may be reckoned that of having the water occasionally retarded for the benefit of the owners of the upper mill.
The question, therefore, whether the privilege passed as appurtenant, or whether the representatives were authorized to convey, depends upon whether it was an existing easement; and this again turns upon the inquiry, whether there can be an easement in favor of one estate against another, where both belong to the same owners. I think it very clear, whatever may be the usage and practice of the owners, that there cannot. Upon this subject Professor WashbueN (p. 26) says : “ The definition given above implies that for an easement to exist there must be two estates in regard to which it is predicated, and that it is not affected by any change of ownership of the respective estates, except that they must belong to different persons; for no man can, technically, be said to have • an easement in his own land. And the consequence is, that if *10the same person becomes owner in fee simple of both estates, the easement is extinguished.” Beside the authorities cited to the text, the principle, whichis elementary, is fully sustained by the cases referred to by the counsel for the appellants. Gayetty vs. Bethune, 14 Mass., 49" court="Mass." date_filed="1817-03-15" href="https://app.midpage.ai/document/gayetty-v-bethune-6404549?utm_source=webapp" opinion_id="6404549">14 Mass., 49, and Cary vs. Daniels, 8 Met. 466. The last named case is directly in point. The proprietor of an upper mill claimed the right, founded on the usage and practice of his grantors when they were the owners of both, to open the waste gates of the dam at the mill below, in order to relieve his own mill from back water. The court, by Shaw, 0. J., said: “The courtáre of opinion that this claim cannot be sustained. At the time of the practice relied on the grantors were owners of both mills, and might favor the one at the expense of the other as the exigencies of their business might require, or at their own mere pleasure. But no right could be founded upon such practice, because it was not adverse. When the estates were severed, and the rights of the respective proprietors became adverse, they stood upon the same footing as if no such usage had existed.”
The language of the license was, “ together with all the ap-. purtenances, mills and mill privileges, rights and interests of what kind or nature soever.” It is contended that the words “ rights and interests ” conferred the power to grant the privilege in question. But this is clearly not so. Those words must be construed with reference to the estate to be granted, and mean all rights and interests pertaining thereto, and not to some other estate not included in the order. Otherwise the representatives might, under the same order, have sold sill the lands of which the two Phoenixes died seized, or any right or interest in them which they conceived might be convenient to the purchasers of the grist mill, which would be absurd.
It is also contended that as twelve eighteenths of the title under which the defendants. claim are derived through Ann Phoenix, one of the grantors in the deed to Orosw'ell, they are estopped by the covenants of that deed from asserting that *11Oroswell did not acquire the privileges which the grantors undertook to give. It may be admitted, as indeed there is little room for doubt, that Ann Phoenix bound herself personally by the covenants to Oroswell, and that she would be estopped ; but the counsel for the plaintiffs answers his own-argument when he says there cannot be an estoppel by fractions, or, to use his language, there can be no such thing as twelve thirteenths of an estoppel. It does not appear that the defendants are interested in the whole of the saw mill property. Thirteen eighteenths are shown to. be in one Thomas, from whom the defendants have a contract of sale. Of these, one eighteenth comes from William H. Phoenix, who acquired the title under the will of his father, Henry. Of the twelve eighteenths which came through Ann, the widow of Henry and mother of William H., she took three by the will of her late husband, and acquired nine by purchase from Franklin K. Phoenix, sole heir of Samuel. Ann conveyed to William H., who conveyed to Thomas. Of the other five eighteenths which belonged to the estate of Henry, three appear to have been conveyed by the devisees under his will, but to whom the record‘does not disclose. Two eighteenths still remain in the devisees. It is obvious from this statement that the estate of William H, as also that of the other devisees under the will, except the widow, was unencumbered by the estoppel. If the alleged cause of action had arisen before the conveyance to Thomas, and whilst William H. and his mother were jointly possessed, and suit had been brought against them, it seems clear that it could not have been sustained against William H. Not being within the estoppel, his answer to that effect would have defeated the remedy entirely, since the right claimed is of such a nature as not to admit of apportionment among the several part owners. It could not have been enforced against Ann without at the same time injuring the estate and impairing the legal rights of William H. and the other co-tenants, and it will not, I think, be contended that either should suffer *12in order to give effect to the estoppel against her. If the interest of William H. was smaller, it was not therefore to be swallowed up to suit the taste or convenience of the owner of the larger part of the estate. If such would have been the result in that action, it seems it should not be different here. The defendants stand in the place of Ann and William H. Through the latter, they have an interest not bound by the estoppel; and if that acquired from the former is, it is nevertheless inoperative, because it cannot be enforced without reaching the interest not bound, as to which they have the same right to protection as the grantor.
Nor can it be urged that William H., by his purchase from Ann, subjected his previous interest to the incumbrance of the Croswell deed. The estoppel was ineffectual at the time of the. conveyance, and the property cannot be said to have passed to him in a worse condition. The law subjects the estate in the^iands of the grantee to the same burdens and disabilities by reason of the acts of the grantor,, as were imposed when it was in the hands of the latter,'but not greater; and if the estoppel was liable to be defeated before, it was equally so after the transfer. If William H. had conveyed to Ann, then his interest might have come under the dominion of the covenants, but not otherwise.
The doctrine of estoppel in pais finds no foundation in the facts. It does not appear that the plaintiffs have done any act or incurred any expense in consequence of the representations or conduct of the defendants or William H. Phoenix, as to the plaintiffs’ supposed right to open the gate and draw water from the reservoir at the saw mill
In my opinion the judgment of the court below should be reversed, and the cause remanded, with directions that the complaint be dismissed.
Ordered accordingly.