solely in the interest of the corporation holding | be made without an actual sale of the stock, it the election. In the other, that the greater op-will be a violation of the order made in this posing interest will prevail over the lesser, as case, and can be punished as such. Moreover, it is so apt to do in all human conduct. We think it is no answer to the relief prayed in this case that in another possibly supposable case a wrong very like the one here complained of might be inflicted, and yet the same measure of redress could not be accorded. It is contended that if relief be granted in this case it will greatly embarrass railroad corporations in the matter of maintaining continuous, connecting lines, so conducive to public convenience and to economy in transportation. It cannot be denied that steam has, in many respects, revolutionized the world, and that railroads are among the more potent instrumentalities which have effected that revolution. The nations of the earth have been brought in to closer neighborhood and better acquaintance, while Christian civilization has been much more speedily and widely diffused. So, commerce and the industrial enterprises have received a new impetus and expansion, theretofore unknown in the world's history. An instrumentality possessing such vast capabilities should be cherished and protected in the enjoyment and exercise of all its rights and privileges. The groveling or agrarian spirit which would hinder or embarrass this mighty agency in the full enjoyment of its rightful powers should receive no encouragement or countenance from right-thinking people. On the other hand, the tremendous power that may be wielded by aggregated or incorporated wealth should be kept within due bounds, and restricted to legitimate methods. The pernicious ends to which concentrated wealth may be perverted need not be mentioned here. The virtuous and patriotic utterances of many of the courts of supreme jurisdiction, re-echoed from the highest officials in the federal government, show all too plainly that the public is awakened to the wrongs inflicted through the instrumentality of combined capital. Let us accord to corporations all their rights, and restrain them in the abuse of their powers, should such be attempted. The principle we have declared in a former part of this opinion will apply with equal force to all employés, agents and all other persons or corporations who may be acting in the interest or for the benefit of the East Tennessee, Virginia & Georgia Company. Nothing less than an absolute sale of the stock to some person or persons authorized to vote it will relieve it of the infirmity of its present ownership, or authorize the present or any pretended owner to be heard in the government of the Memphis & Charleston Company. The bill does not charge that the East Tennessee, Virginia & Georgia Company contemplates a sale, or pretended sale, of the stock, and does not charge that the company, by any indirect means, will attempt to have its stock voted in its interest. The charge is that "if said East Tennessee, Virginia & Georgia Company is permitted to transfer said stock it will conceal its interest in the same under the name of some other party, and through such party reacquire the control it now has, with said stock standing in its own name." If such attempt an election of directors thus procured would be a fraud perpetrated in defiance of the order of the court; and such election would be annulled on proper application. We hold, however, that in the present stage of this case, and under the averments of the bill, all of which that is pertinent we have copied, there is not enough shown to authorize an injunction against a sale of the stock. That question can be properly raised when an attempt is made, should it ever be made, to violate or evade the principles of the injunction granted in this cause. 1 Brick. Dig. p. 704, § 930; 3 Brick. Dig. p. 377, §§ 154, 155, 158. The bill in this case avers that before filing the bill the complainants "requested the Memphis & Charleston Railroad Company, by a request addressed to its officers, to take appropri ate legal proceedings to prevent the stock standing in the name of the East Tennessee, Virginia & Georgia Railway Company from being voted upon," etc., "but said corporation has neglected to comply with said request." This averment is sufficient to authorize the stockholders to sue in their own names, if any previous request was necessary to give them that right. Circumstanced as this case is charged to have been, it would seem any previous request would obviously have been denied, and therefore it was not necessary to prefer it. Tuscaloosa Mfg. Co. v. Cox, 68 Ala. 71; Nathan v. Tompkins, 82 Ala. 437; Merchants & P. Line v. Waganer, 71 Ala. 581; Green's Brice, Ultra Vires, 673, note a; Dodge v. Woolsey, 59 U. S. 18 How. 331 [15 L. ed. 401]; Hawes v. Oakland, 104 U. S. 450 [26 L. ed. 827]. We have stated above that the complainants' bill makes a case for an injunction, restraining the East Tennessee, Virginia & Georgia Railway Company, its agents, directors and all other persons representing it and in its interest, from voting the shares of stock held by that company. We have forborne to state one imperfection in the bill until this time. Many of the essential averments of the bill are stated in this form: Complainants are "informed and believe," or are "advised and believe," without any allegation or charge that the information or advice is true. This form of allegation has always been held in this court to be insufficient. It is not an averment that the information or advice is true, but that the pleader believes it to be true. A full denial of such averment would be, either that complainants had not received such information or advice, or if they received it, they did not believe it. This would not present the issue sought to be raised. 1 Brick. Dig. p. 702, SS 907, 908. We will not, however, dissolve the injunction for this imperfection in pleading. Should it not be remedied within a reasonable time, it will become the duty of the chancellor to act upon the bill as if the imperfect averments pointed out had not been made. The decrce of the chancellor is modified, and the cause remanded. Let the appellees pay the cost of appeal. Modified and remanded MASSACHUSETTS SUPREME JUDICIAL COURT. Levi L. WHITNEY D. WHEELER COTTON MILLS. John RHODES v. SAME. Mowry LAPHAM . SAME. 1. The grant to a lower riparian pro- not include a right to the amount required to run the entire mill including all the other machinery therein, although it is only such as is necessary for a mill running two engines, where the engines were run by a separate water wheel with which no other machinery was connected. 2. A provision in a deed granting lower riparian rights requiring the grantee to contribute towards the expense of maintaining the dam, flume and gate at the outlet of the reservoir does not alone give him the right to have the water held back for his benefit. 8. Although an upper riparian proprietor cannot be compelled to hold back water for the benefit of the owners below him, yet he cannot unreasonably interfere with the natural flow of the stream, and send down a great deal more than the usual quantity at times, and by so doing leave none for a long time afterwards to maintain the stream in its usual condi tion. A grant to a riparian proprietor of the right to draw a certain quantity of or, however, will not be permitted to unreasonably let down the water for his own convenience and thereby render nugatory the right of his grantees to obtain water. 5. An estate granted by deed cannot be expanded by recitals or statements of the grantor made in a later deed to the injury of an intervening title. 6. Riparian rights are not lost by nonuser. (May 9, 1890.) RESERVATION from the Supreme Judicial Court for Worcester County for the opinion of the full court, upon a master's report and exceptions thereto, of a suit to establish certain alleged riparian rights and to enjoin an interference therewith. Judgment for plain tiffs. The facts are fully stated in the opinion. Messrs. Rice, King & Rice and John Hopkins for plaintiffs. Messrs. F. P. Goulding and D. B. Hubbard for defendant. C. Allen, J., delivered the opinion of the court: The several plaintiffs and the defendant are respectively the owners of mill sites and privileges upon Mill Brook, a stream which flows from Singletary Pond to Blackstone River. The defendant corporation owns the first or upper privilege. The plaintiffs own respectively as follows: The plaintiff Whitney owns the second privilege, the plaintiff Lapham the third, and the plaintiff Rhodes the fourth and water from the grantor's pond each day, and no more, confers no right to have the water held back so that there may at all times be enough in the pond to supply the given amount. The grant-lates and manages the flow of water from Single the seventh. The owners of the fifth and sixth privileges are not before us. The plaintiffs complain of the manner in which the defendant regu NOTE.-Riparian rights. A riparian proprietor upon a natural stream should use the water in such a manner that every riparian proprietor further down the stream should have the use and enjoyment of it substantially according to its natural flow, subject to such interruption as is necessary and unavoidable by the reasonable and proper use of the water in the stream above. Chandler v. Howland, 7 Gray, 348; Ware v. Allen, 1 New Eng. Rep. 733, 140 Mass. 513. See Burk ▼. Simonson, 1 West. Rep. 190, 104 Ind. 173. Each riparian owner is entitled to a reasonable use of the water for domestic, agricultural and manufacturing purposes, so far as it is reasonable, conformable to the usages and wants of the community. Ulbricht v. Eufaula Water Co. 4 L. R. A. 572, 86 Ala. 587. The reasonableness of a use of land which obstructs the flow of surface water over it is determined by its operation upon the interests of all parties affected by it. Rindge v. Sargent, 4 New Eng. Rep. 523, 64 N. H. 294. Every riparian owner has a private property right to the reasonable use of running water, qualified, however, by the requirement that it must be enjoyed with reference to the similar rights of other riparian owners. Ulbricht v. Eufaula Water Co. supra. tion. Withers v. Purchase, 60 L. T. N. S. 819, 40 Alb. L. J. 214. The owner of higher land has the right to have surface water pass off through natural drains through servient lands. Anderson v. Henderson, 14 West. Rep. 109, 124 III. 164. But he cannot remove natural barriers and let upon the lower land water that would not naturally flow in that direction. Ibid. When two tracts of land are adjacent, and one is lower than the other, the owner of the upper tract has an easement of the lower land to the extent of the water naturally flowing from the upper land at and upon the lower tract, and any damage that may be occasioned to the lower land thereby is damnum absque injuria. Boynton v. Longley, 19 Nev. 69. It is only when the flow of water on one person's land is identified with that on his neighbor's by being traceable to it along a distinct and defined course that the two proprietors can have natural relations with each other in respect of it, considered as the subject of separate existence. Jones v. Weitershausen (Pa.) 25 W. N. C. 209. When two mill owners whose mills are on the same stream, one below the other, have a mutual interest in the upper dam, used as a reservoir for storing water to propel the machinery of both mills, they are, in the absence of any contract, under a mutual duty to maintain the dam; and a The accustomed course of a natural stream which court of equity will compel each to contribute to a riparian owner is entitled to have preserved is its maintenance in proportion to his relative interthe natural and apparently permanent course ex- est, so long as he exercises his right to the water. isting when the right is asserted or called in ques-Webb v. Laird, 3 New Eng. Rep. 586, 59 Vt. 108. 7 L. R. A. The cases come before us upon a master's report and numerous exceptions taken by the defendant thereto, with such portions of the evidence as the parties deemed important. We shall not be able to do much more than to declare the general rights of the parties, upon the cases as presented, leaving them to make before a single justice such further application for the settlement of the decrees, or otherwise, as may be necessary. tary Pond, and allege that at times the defendant, if these rights were varied by any adverse user wrongfully keeps back the water, and at other or prescription, on one side or the other. times wrongfully sends down too much; and The first deed in the order of time was a conthey pray for an injunction, and also for a de- veyance which included the fourth privilege, cree establishing the respective rights of the now owned by the plaintiff Rhodes. This was parties in Singletary Pond, and in Mill Brook, a deed from Caleb Burbank to Benedict and and also for damages. Braman, dated January 3, 1925, of a described parcel of land on Mill Brook, with a right to erect mills at such place on the premises as to command a certain defined and limited head and fall of water; also with the right to the grantees, their heirs and assigns (when necessary to drive their works), to hoist the gate at said Crooked Pond [which was another name for Singletary Pond] so as to let as much water run as shall be equivalent to carrying two engines in the grantor's paper mill, when the grantor does not suffer so much to pass at his paper mill; but when the grantor, his heirs or assigns permit that quantity to pass the paper mill, the grantees, their heirs and assigns are not to meddle with said gate or draw any more water, nor are they to draw said quantity at any time except from six of the clock in the forenoon to six in the afternoon of each work. ing day, and the grantees, their heirs and assigns are to be at their just proportion of the expense of maintaining the gate, flume, dam, etc., at Crooked Poud, and of making improvements upon the same when necessary for the common benefit. Many things heretofore controverted may now be briefly disposed of as conceded, or as immaterial, in the view we take of the principal questions respecting which the parties are at issue. It may now be assumed that Caleb Burbank was the owner of all the mill-sites and privileges in 1825, when he began to make conveyances, together with all the right which anybody had, by means of a dam, gate, etc., at the outlet, to regulate and control the flow of water from the pond. This is not now controverted by either party. The upper site had upon it a paper mill operated by Burbank. There has been some question which of the two outlets of the pond was the original one; but as both outlets come together before passing the first privilege, it is not material to determine which was the original one. It is also now admitted that the foreclosure of the mortgage from Burbank to Waldo, which is the foundation of the defendant's title, was valid. It will be convenient to consider, in the first place, what rights the parties respectively acquired under their deeds; and afterwards to see The upper owner cannot vary the flow of the stream so as to cause injury to the lower owner by any alteration in the conformation of his land, as by removing a ledge of rock. Grant v. Kuglar, 3 L. R. A. 606, 81 Ga. 637. The second deed in the order of time was a conveyance which included the seventh privilege, which is also now owned by Rhodes. This was a deed from Burbank to Timothy H. Longley, dated May 1, 1825, of a described parcel on Mill Brook, with a certain right of flowing the land above: "I also give and grant to the said Longley, his heirs and assigns, the privilege, when it may be necessary for the purpose of keeping in operation mills which unreasonable and should be enjoined. Mason v. Hoyle, 6 New Eng. Rep. 629, 56 Conn. 255. well v. Sanderson, 69 Wis. 52. But he has the right to stop the natural flow long enough to fill up the pond or reservoir created by his dam, and keep it full for the use of his mill; and A riparian owner may grant a part of his estate, will be liable to the lower owner only when the use not abutting on the stream, and, as appurtenant | and detention of the water is unreasonable. Caldthereto, a right to draw water from the stream through his remaining land; and for any diversion of the natural flow of the stream disturbing such right, the grantee may maintain an action. St. Anthony Falls Water Power Co. v. Minneapolis (Minn.) 43 N. W. Rep. 56. But he cannot authorize, as against a lower proprietor, a company to take water from the stream, to be conducted to a distance and sold. Heilbron v. Fowler Switch Canal Co. 75 Cal. 426. The riparian owner on a non-tidal navigable stream has all the rights of a riparian owner, not inconsistent with the public easement. Ibid. Upper and lower mill owners. The owner or occupant of a water-power may lawfully pass through his dam the entire volume of water naturally flowing in the stream, but must not increase such volume to the injury of adjoining lands. Boyington v. Squires, 71 Wis. 276. Where an upper mill owner detains water in his reservoir long enough to operate his mill for five hours in dry seasons, which occur for three months of the year, and thereby causes lower mills to lie idle for five days at a time, such use of the water is So long as his dam stands, he must vent the waters for mill owners below, so that each shall have the natural flow of the stream, except so far as the flow is modified by successive riparian proprietors. Stevens v. Kelley (Me.) 5 New Eng. Rep. 871. One owning a suitable place for a mill site cannot be deprived of it because someone else has wrongfully interfered with the stream above him, unless the interference has continued for such length of time as to bar a suit or indicate acquiescence. Koopman v. Blodgett, 14 West. Rep. 909, 70 Mich. 610. A lower proprietor may set back the water in its natural state to the boundary of the upper proprie tor, but he cannot by a dam or log jams so as to impede the running of his mills. Richards v. Peters, 14 West. Rep. 628, 70 Mich. 286. An upper proprietor cannot, merely because at times the lower proprietor partially obstructs the operation of his mills, entirely abandon their use, and claim damages therefor, unless the obstruction renders their operation impossible with profit. Ibid. Riparian rights generally. See notes to Haines v. Hall (Or.) 3 L. R. A. 611; Fulmer v. Williams (Pa) 1 L. R. A. CO4. the grantee may have upon the premises, of raising the gate of the grantor, which is situated in the great canal, so called, at the outlet of the pond known by the name of Crooked Pond, so as to let so much water run as shall be equivalent to carrying two engines in the grantor's paper mill by means of a breast-wheel, whenever the grantor does not suffer so much to pass to the works which shall be erected upon the premises: but when the grantor, his heirs or assigns shall permit so much water to pass to the premises aforesaid, the grantee, his heirs or assigns are not to meddle with said gate, nor draw any more water, nor are they to draw said quantity at any time except from six o'clock in the morning to six o'clock in the evening of each working day, and the grantee, his beirs or assigns are to be at their joint proportion of the expense of maintaining the gate, flume, dam, etc., at Crooked Pond, and of making improvements upon the same, when necessary for the common benefit." The third deed in the order of time was a conveyance which included the second privilege, now owned by the plaintiff Whitney. This was a deed from Burbank to Hervey Waters, dated September 1, 1828, of three lots, with a certain right of flowing the land above. "Furthermore, if the said Burbank, his heirs or assigns shall neglect to draw water from Singletary Pond suficient to carry two engines, as now running in the grantor's mill from five A. M. to seven P. M. on each working day, said Waters, his heirs or assigns shall have a lawful right to draw so much water, at any time so neglected by the grantor or his assigns, and no more, and said Waters, his heirs or as signs shall be at equal expense in erecting, making or repairing the dam, flume or gates at Singletary Pond with the other owner of privileges from said pond." The fourth deed in the order of time was a mortgage, which included the third mill-site, now owned by the plaintiff Lapham. This mortgage was given by Burbank to Stephen Salisbury, dated March 23, 1829, and included various other parcels of land besides the millsite, but it contained no specific grant of rights of water in the pond or stream. This mortgage was duly foreclosed. The titles under the above deeds all came by mesne conveyance to the several plaint fis. The title of the defendant is derived from Burbank, through a mortgage given by him to Sarah Waldo, dated April 16, 1829, of various parcels of land, oue of which included the first or upper privilege, situated immediately be low the outlet of Crooked Pond, so called, with the mills and privileges thereon and thereto belonging." This mortgage was duly foreclosed, possession for breach of condition having been given in 1843. In order to determine what was the extent of the rights granted by the first three of the deeds above mentioned, it is, of course, proper to read the deeds in the light of the facts which existed and were known to both parties at the time when the deeds were given; and having done this, the extent of the grant must depend upon the meaning of the word used. Apparently having this rule in mind, the master has made a finding as follows: "I find that Caleb Burbank, when he made these grants of water rights in said deeds of the plaintiffs' and defendant's privileges, in 1825 and thereafter, as above recited, had adapted his paper mill, as a water mill, to the capacity of the stream, so regulated in its flow from Singletary Pond as a reservoir, as to produce a constant and uniform volume of water during each working day of the year, and not being then familiar with the use of the term horse power,' as the measure of motive pow. er in the operation of mills, he adopted the requirements of his paper mills, as then run, to wit, two paper engines' and the machinery then necessarily used therewith in making paper, as the measure of the rights of the grantees, their heirs and assigns, in their respective grants, as aforesaid, from him, in the waters of said reservoir and stream therefrom, retairing for the owner of the upper privilege the care and management of the reservoir gate, subject to the rights of the owners below, under the grants, to hoist said gate when necessary to give a regular and uniform flow of said stream in quantity or volume, so measured by the use and requirements of said paper mill-all owners of privileges on said stream to contribute equally in the expense of maintaining said reservoir for their common benefit." Two questions arise upon this finding: (1) whether, assuming the facts to be as thus stated, the language of the deeds can be so stretched as to give to the several grantees a right to enforce such a regulation of the water as to produce a const int and uniform volume of water during each working day of the year; and (2) whether the evidence warrants a finding that such was the intention of the grantor in giving the deeds. We are unable to agree with the finding of the master in either particular. The language of the deeds does not permit the construction put upon them by the master. It is of no consequence how Burbank operated his own mill or managed or regulated the water for his own convenience and benefit. What he conveyed to these grantees was the ordinary right of riparian owners, except that they were only entitled to have a certain specified and limited quantity of water sent down the stream during certain hours of every working day. If that quantity should come, it was expressly stipulated in the first two deeds that the grantees should not meddle with the gate, or draw any more water; while in the third deed it was specified that if the grantor should neglect to draw that quantity, the grantees might draw so much, and no more. In any event their right was expressly limited to that quantity of water, which in each deed was described as being what would be sufficient to carry or equivalent to carrying two engines in the grantor's mill, for so many hours a day, the number of hours being greater in the last deed; and thus in respect to the quantity of water which they were entitled to have flow in the stream, their right was not quite that of ordinary riparian owners. There is not in either deed anything giving to the grantee a right to have the water beld back for his benefit. The only provision that looks at all like an understanding between the parties that the water should be held back for the benefit of the grantees is that which subjects the grantees to a part of the expense of maintaining the dam, I and agreed that if at any time he should not fume and gate at the outlet of the pond. If be sending down enough water to carry the there were any other words going to indicate specified portion of his machinery, the grantees such a right on their part, this provision would might come up and raise his gate and draw certainly lend support to that construction. that quantity of water, and he bound them to But this provision of itself alone by no means bear a proportion of the expense of maintaincontains so much. The accumulation of waing the gate, flume and dam, not of managing ter in Singletary Pond by means of a dam them. There is no occasion for inferring that would naturally and almost necessarily be of the grantor intended to grant any greater right some benefit to the various mill owners on the in respect to the use of the water than what is stream. The three deeds all include a recog- according to the plain and natural meaning of nition that the grantor in the first instance was the words used. to have the care of the gate. The matter that was stipulated for was the quantity of water that should be sent down; not the duty of the grantor in holding back water. It is possible that if the present methods of using water bad been foreseen the parties might have stipulated for having the water held back, as well as for sending it down; but they did not do Even if it could be made to appear that they intended to do so, we are unable to find in the words which they used anything which imposes that duty upon the grantor. in such a way as to leave none for a long time afterwards to maintain the stream in its usual condition. But since a riparian proprietor has a right to insist that the water shall not be unreasonably withheld or let down by an owner above, an owner of a stream at the outlet of a great pond, who by digging out the channel and erecting a dam at the edge of the pond can hold back all the water or quickly draw it down nearly to low water mark, has no right by virtue of his position unreasonably to interfere with the natural flow of the stream, so as to give the riparian proprietors below a great deal more than the usual quantity of water during a part But, moreover, the evidence is not sufficient, of the year, and little or none during the reIn our opinion, to warrant a finding that the mainder of the year. While he is not obliged grantor so intended, or that, in the words of to hold back the water for the benefit of the the master's report, he "adopted the require-owners below, he cannot lawfully let it down ment of his paper mill, as then run, with two paper engines, nd the machinery then necessarily used therewith in making paper, as the measure of the rights of the grantees," both as to letting down and holding back water. The paper engines, which, as we understand it, were machines for beating up pulp, were operated by water coming through a separate aperture and to a separate wheel, which did not carry other machinery. We cannot accept the conclusion that when the grantor specified two paper engines he meant to include all the other machinery in his paper mill. Nor are we able to find any sufficient evidence that he intended to be bound for all time to regulate the water for the benefit of the grantees as he was then regulating it for his own benefit. If such had been the intention, it would most likely have been expressly stated. The grantees might well expect in the natural course of things to get a benefit from the maintenance of the dam and gate; not necessarily by having the water held back and delivered with reference to their special convenience, but because the water would be so accumulated that a less proportion would run to waste. In the absence of any stipulation or acquired right to the contrary, the owner of an upper privilege may make a reasonable use of the water and obstruct and accumulate it in a reasonable way for the benefit of his own mill, whatever may be the effect upon the owners below. Springfield v. Harris, 4 Allen, 494; Merrifield v. Worcester, 110 Mass. 216, 219. But he must not withhold or let down the water in an unreasonable manner. Clapp v. Herrick, 129 Mass. 292. And the grantee of a lower privilege gets no right to the use of a reservoir owned by the grantor, unless it is so specified in the deed, even although necessary for the beneficial use of his mill. Brace v. Yale, 4 Allen, 303. The grantor had a going mill, with certain machinery. As a measure of power granted, he selected a certain portion of that machinery Three of the deeds above mentioned recognize the existence of a dam, flume and gates at the outlet of the pond by which the discharge of water is to be regulated, and they give to the grantees a right to raise the gate and let down the stipulated quantity of water whenever the grantor does not suffer so much to pass at that point. While we hold that these provisions do not require the grantor to maintain the dam and gate and regulate the flow of water for the grantees and their successors, nor limit his right reasonably to use the water, even though the quantity used may exceed that required by them, and may leave in the pond too little to supply the amount mentioned in the deeds, it is at the same time manifest that he cannot under these contracts unreasonably let down the water for his own convenience, and thereby render nugatory the right of his grantces to open the gates and obtain water for their mills. If he assumes for his own purposes to regulate the discharge of water from the pond, he must do it with a reasonable regard to the rights of the owners below, having reference to the size and nature of the stream, and the uses to which it is adapted. Clamp v. Herrick, supra. The plaintiffs introduced in evidence a deed from Caleb Burbank to Goddard and Mills, dated September 12, 1833, of the upper privilege; granting "also a right to draw water from Singletary Pond, so called, sufficient to carry two engines in the paper mill as now used, or all water that naturally runs in the stream together with all privileges." The plaintiffs contend that, although the title conveyed by this deed has been cut off by the foreclosure of the Waldo mortgage, yet this deed may be referred to in aid of the construction to be given to the deeds under which they claim title, and that it shows that the grantor considered the quantity of water which was |