five years, and has always known it, and had charge of the repairs upon it till within a few years; that, during the time he hired it, he leased the use of the main pipe to those parties along the line of it, and who were accommodated by it, except Truxton Dority, who then lived on the place now owned by the plaintiff, Isaac Dunning, then living where the defendant now lives, and a party on the Jacob Dority place, “reserving to these individuals their rights which had been sold to them; and they were under obligations to do their proportion towards the repairs on the main pipe if any repairs were needed.” He also testifies that Truxton Dority paid somewhere about $100 for his right, and that this was one of the places reserved by Mr. Herrick from the payment of rent. This testimony is corroborated by that of Daniel Herrick’s son and administrator, who worked upon the aqueduct when a boy, and remembers the fact of these three parties owning their water-rights. ‘ Moreover, the testimony of E. S. Higgins, formerly an owner of the property now held by the plaintiff, shows that as long ago as 1860 he had a separate deed, in connection with his title to the premises, of the water-right belonging to the place, made out from what he terms the old Daniel Herrick deed. ,

As tending to corroborate these facts, it will be found upon examination that the evidence is clear and uncontradicted that for more than 45 years the plaintiff, and those under whom he claims, have enjoyed the use of the water, flowing substantially in the same manner to the house and stable upon the premises. During all this time it has passed through the premises formerly known as the “Isaac Dunning Place,” and now held by the defendant. During all these 45 years the right of the plaintiff, and of his predecessors in title, thus to take and use the water, and to have it flow to them, has never been questioned or contested by any one till this controversy arose. Even if there was not evidence of an express grant, these facts, showing an adverse and exclusive use of water during so long a period, might well be considered presumptive evidence of a grant. Watkins v. Peck, 13 N. H. 370; Wallace v. Fletcher, ’30 N. H. 452; Ashley v. Ashley, 4 Gray, 200; White v. Chapin, 12 Allen, 519; Jewett v. Hussey, 70 Me. 437; Mm-chie v. Gates, 78 Me. 304, 305; S. C. 4 At]. Rep. 698. “And this is as true,” says .PARKER, C. J ., in Watkins v. Peck, supra, “in relation to water flowing through an aqueduct for use at a house, by the occupants, as it is in relation to the water of a river used for propelling machinery.”

Under circumstances like these, the language of the court in Tinkham v. Arnold, 3 Me. 123, may be considered as peculiarly appropriate. “The law,” says MELLEN, C. J ., in that case, “gives a natural construction to the conduct of the parties, and, after a long succession of years, presumes that the person enjoying the easement, having no right to enjoy it unless under the grant of the true owner, had such a grant; and that in consequence of it he had never been molested in his enjoyment.”

What was the effect of the deed from the administrator of Daniel Herrick to the defendant and David H. Patten, and what was thereby conveyed to them? The interest which Daniel Herrick had in the aqueduct was not only the right to draw water from a particular spring, but to have pipes laid in the soil of another, and for that purpose to enter thereon, repair and renew such pipes. This interest was more than an easement in gross; it was an interest in the realty, assignable, descendible, and devisable. It was such an interest as was capable of being assigned as to a part or in gross. Easements growing out of it might be acquired by grant or otherwise, and thus become the objects of title in others. Amidon v. Harris, 113 Mass. 64. Thus the right to take water from this aqueduct was an easement, and so far as this right had not by grant or otherwise passed from the owner to any particular person or persons, or become annexed to any particular estate or estates, the same was subject to assignment by him. Goodrich v. Burbank, 12 Allen, 459; Amidon v. Harris, supra. But whatever easements or rights had been acquired by grant or otherwise from the owner of the aqueduct would inure to the benefit of the persons or estates of those who had thus acquired them, and would not, therefore, pass by the administrator’s deed. Before the defendant and David H. Patten received the deed of this aqueduct from the administrator, Patten was the owner of the premises which were afterwards conveyed to this plaintiff. Annexed to these premises, and appurtenant thereto, was the easement or right to the water from the aqueduct in question. To this easement, thus annexed, and belonging to these premises, the defendant could certainly claim no right or title by virtue of the administrator’s deed. If a like easement, at that time, existed in reference to the defendant’s premises, neither could Patten have claimed any right or title thereto under that deed, for the same reason. But whatever title or interest the deceased, Herrick, had in the aqueduct, passed to them, and of this they were owners in common. Assuming that the court should find that an easement existed such as we have mentioned, and had once become appurtenant to the premises now owned by the plaintiff, it is contended in defense that such easement became extinguished by unity of title to the dominant and servient estate in the same person,—by David H. Patten owning the premises to which the easement had become annexed, and by taking to himself, by the administrator’s deed, a‘ half interest, undivided, in the main aqueduct. That an easement will become extinguished by unity of title and possession of the dominant and servient estates in the same person by the same right is a principle of law too general and elementary to be questioned. But this principle, like many others, is subject to qualifications. In order that unity of title to the two estates should operate to extinguish an existing easement, the ownership of the two estates should, be co-extensive, equal in validity, quality, and all other circumstances of right. If one is held in severalty, and the other only as to a fractional part thereof, by the same person, there will be no extinguishment of such easement. Ritge'r v. Parker, 8 Cush. 147 ; 2 Washb. Real Prop. *85. Thus it was held by ABINGER, C. B., in the English court of exchequer, in Thomas v. Thomas, 2 Cromp., M. & R. 34, in which case one estate was held in fee, and the other for a term of 500 years, that unity of possession did not extinguish the easement, but only suspended it during that unity of possession; and upon parting with the premises to different parties the right revived. '

In the application of these principles to the facts in the case at bar, we find that, while Patten had an estate in fee in the Premises to which the easement was annexed, his interest in the aqueduct, derived from the administrator’s deed, was but a chattel interest, not only fractional . in quantity, but limited in its duration to the term of 999 years. In re . Gal, 5 Mass. 419; Chapman v. Gray, 15 Mass. 445; Brewster v. Hill, 1 N. H. 350; Hollenbcck v. McDonald, 112 Mass. 249; Bouv. Law Diet. tits. “Chattel Interest,” “Estate for Years.” There was therefore no such unity of title and possession as would extinguish the easement in the premises while held by David H. Patten, and consequently they passed by devise to his Wife and daughter, the plaintiff’s grantors, with the easement still subsisting and appurtenant thereto.

They also took the one-half interest in the main aqueduct which Patten had acquired in his life-time by the administrator’s deed. While thus holding the legal title to the premises, with the easement in the use of' the water running to them as part and parcel thereof, while also holding the half interest in the aqueduct, they conveyed to the plaintiff; adding to the description of the premises this clause: “Also all the branch water-pipes running from the main cistern to the house and stable.” This conveyance to the plaintiff, being made and recorded prior to the conveyance from them to the defendant of their interest in the main aqueduct, may be properly held to convey to the plaintiff whatever might be fairly said to pass by the terms of the deed, and which they owned at the time of the conveyance. Had the clause in relation to the branch water-pipes not been inserted in the deed, the easement relative to the use of water, being one actually belonging to the estate conveyed, would have passed by implication. Philbrick v. Ewing, 97 Mass. 134. With that clause added, was it the intention that only the branch water-pipes themselves should be conveyed? Or was it the intention, as well as the legal effect, that not only the branch water-pipes, but also the easement in the use of the water passing through them upon the grantor’s premises, and which had become a legal appurtenance to the estate, and then in use by them, should also be conveyed? We are inclined to the latter view. It is not denied that the branch pipes would have passed without any mention thereof in the deed. Of What practical use, then, were the pipes, six feet below the surface of the earth, without the right to the water passing through them? It is an ancient maxim that, when a person grants a thing, he is supposed also tacitly to grant such means of his own as are necessary thereby to attain the thing granted. Broom, Leg. Max. *426; Shep. Touch. 89; Stanwood v. Kimball, 13 Metc. 533. Laying out of the case all oral testimony in relation to What was intended to be conveyed, and looking at the deed in reference to its terms, the subject-matter, and the circumstances surrounding the transaction, we feel satisfied that not only was it the legal effect of the deed, but also the intention of the grantors, to convey certain premises with the branch water-pipes then in the soil and in use upon the granted premises, as in

the case of Coolidge v. Hagar, 43 Vt. 9; and that the defendant, by his _ deed from the-same parties, which was executed shortly afterwards, received a distinct property from that which has been conveyed to the plaintiff, being the same undivided half interest in the main aqueduct which years before had been deeded to Patten by the administrator of Daniel Herrick.

We have examined at some length the principal grounds upon which both parties base their claims. It is unnecessary to consider any others, inasmuch as we are of the opinion that the plaintiff is entitled to prevail.

The only remaining question is that in relation to damages. The acts of the defendant in diverting the flow of water to the plaintiff’s premises was a misfeasance such as would render him liable in this action. It was in the nature of a continuing nuisance. The evidence in relation

to these acts indicate that the damage is temporary, rather than of a ' permanent injury to the realty. They do not appear to be of such permanent character as would seem to warrant us in assuming that they are to continue forever in the future, and thereby justify the assessment of damages accordingly. The cost of restoring the water to its accustomed channel could be but very slight, and it lies in the power of the defendant thus to restore it, thereby avoiding successive suits. In this case we adopt the rule laid down by this court in Cumberland &: Oagford Canal Corp. v. Hitehings, 65 Me. 140, and the plaintiff will recover such damages only in this action as he had sustained at the time it was commenced. Thompson v. Gibson, 7 Mees. & W. 456; Battishill v. Reed, 18 C. B. 716; Bare v. Hofman, 79 Pa. St. 71.

Judgment for the plaintiff for $40 damages.

PETERS, C. J ., DANFORTH, VIRGIN, EMERY, and HASKELL, JJ., concurred.

McCLURE o. LIVERMORE.l
(Supreme Judicial Court of Maine. October 1, 1886.)

1. Pnomssonv NOTE—CONSTRUCTION.

A promissorg note, reciting “we” promise to pay, and signed, “D. P. LIVERMORE, Treas. allowell Gas-light Co., " is the note of the individual, and not of the corporation. ‘ *

2. SAME-ESTOPPEL—PRIOR SUIT AGAINST CORPORATION.

In an action on a note, the fact that the plaintiff had previously brought suit against a corporation as maker on the same note, and obtained a, default, but not a judgment, will not estop him from maintaining the action if the defendant was not induced to change his position thereby, to his injury.

On report from superior court, Kennebec county.
Assumpsit on a promissory note of the following tenor:

“$350. HALLOWELL, January 1, 1881. “On demand, after date, we promise to pay to the order of John C. McClure The defendant claimed—First, that the note was that of the corporation; and, second, that if it was the individual note of the defendant, the plaintifl' was estopped from maintaining this action because he had previously brought suit against the corporation on the same note, and had obtained a default in the same, though not a judgment.

Bean If Beane, for plaintiff.

A. M. Spear, for defendant.

LIBBEY, J . The note sued on contains no ambiguity. Its terms are clear, and its meaning can readily be understood without resort to extrinsic evidence. The facts reported to be considered by the court, if admissible, are not competent evidence to vary the plain meaning of the written contract. Mellen v. Moore, 68 Me. 390; Davis v. England, 141 Mass. 590; S. C. 6N. E. Rep. 731.

We think the note must be construed to be the note of the defendant, and not of the corporation. It contains no apt words showing that the parties understood it to be the contract of the corporation, and not of the defendant. It nowhere appears that the defendant made the promise for the corporation. The language used expresses his own promise, and what is added after the signature is descriptive of the person. The following cases are directly in point: Sturd'ioant v. Hull, 59 Me. 172; Mellen v. Moore, 68 Me. 390; Davis v. England, 141 Mass. 590; S. C. 6 N. E. Rep. 731.

But it is claimed by the counsel for the defendant that the plaintiff is estopped from maintaining this action against him, by commencing an action against the corporation on the same note, and prosecuting it to a default. That action has not gone to judgment; and, to create an estoppel, it must appear that the acts of the plaintiff, relied on, caused the defendant to change his position, or take some action in regard to the note which will be injurious to him if the plaintiff shall be permitted to charge him as the maker of the note. But the case is entirely barren of any such element. It does not appear that the defendant was in any way misled, or induced to change his position to his injury, by the suit against the corporation. There is no estoppel. Defendant defaulted.

PETERS, C. J. , DANFORTH, VIRGIN, FQSTER, and HASKELL, JJ., concurred.

TRADE-MABK—“PATENT ROOFING"—Goon-WILL—Es'm'rn OF DECEDENT.

Where one carried on the so-called business of “patent roofing” in connection with a worthless patent during his life-time, one of his administrators who continues it under that name after his death, for his own benefit, should not be held liable to the estate as for the use of a trade-mark or good-will belonging thereto, when there is no evidence that the intestate adopted the expression “patent roofin ” as a trade-mark, or with any other intention than as a mere designation 0 the kind of business he was enga ed in, or that the business has any special value; particular] when the admimstrators all jointly carried on the business for a time when t ey should have sold it out if it was