In Horne v. Hutchins, 71 N.H. 128, it was settled that in the deed of Cate to Hodge Remick, Cate "adopted the physical state of the property at the date of the Hersey, Thompson Co. deed [October 26, 1872], and the extent and manner of the use made of the water at that time in connection with the box factory, as the standard for measuring the rights and privilege conveyed by him." By this construction, it became immaterial what rights Cate or his grantors had previously assumed to convey or lease, or what rights they might have conveyed or leased had they seen fit to do so. Having adopted the physical state of the property and the actual use made of the water as the standard for measuring the rights conveyed by the deed, it only remained for the superior court to ascertain what the physical situation was. The deeds and leases offered by the defendant disclose nothing bearing upon that inquiry, and were properly excluded.

It does not appear that the evidence as to the water wheels, which the superior court refused to report at the request of the defendant, if reported, would have presented any question of law. The defendant's request was therefore properly refused.

Exceptions overruled.

All concurred. *Page 79