the date of the deed, the document expresses an intention to convey all the grantor's rights in the river; and, as he owned the entire right, such right was conveyed thereby. The evidence claimed to be competent and sufficient to establish that the deed expresses a purpose to convey only the power appurtenant to the north bank, or one-half the

that the construction of a written document is the ascertainment of the intention of the parties, determined like a question of fact by the natural weight of competent evidence and not by the application of arbitrary rules, does not authorize the use as evidence of matter not proper for consideration in the interpretation of a writing. It does not abolish the well-established rule that a writ-stream is as follows: Prior to the developten instrument cannot be contradicted or ment of the power at the defendants' dam, varied by parol extraneous evidence. Mere- the land on the north bank was owned by dith, etc., Ass'n v. Drill Co., 66 N. H. 267, Royal Joyslin; that on the south bank by 20 Atl. 330; Goodwin v. Goodwin, 59 N. H. Frederick Fiske. In April, 1864, Joyslin and 548; Proctor v. Gilson, 49 N. H. 62. The Fiske each conveyed by separate deeds to the oral evidence of the intention of the parties same persons as grantees a portion of their received by the court subject to exception lands bordering on the river, describing the upon the issue of reformation is as inad-tracts by courses and distances. Joyslin's missible upon the question of construction deed contained the following clause: "Also as the finding of the fact of intent. The we hereby convey to said grantees all our force of the rule lies more in the refusal to right, title, and interest which we may, in be bound by the application of arbitrary any way, have acquired in and unto said rules than in the denomination of the mat-river, or in and unto any land or water priviters proper for consideration as competent lege on the south or opposite bank or shore evidence, or in describing the making of the of said river as far on said river as the correct deduction therefrom as the weighing tract above conveyed shall extend." Fiske's of evidence-language which has sometimes deed contained the clause in the same words, been misunderstood. State v. Railroad, 70 N. substituting "north" for "south." The title H. 421, 433, 434, 48 Atl. 1103. In ascertain- so united in the common grantees of Joyslin ing what the language meant to the parties and Fiske came by sundry intermediate conemploying it, the sense, signification to them veyances to Harry E. Stevens. In making of the terms employed, all evidence tending these conveyances, the draftsmen of the to put the interpreter of the words in the deeds, instead of setting out a new descripposition of the one employing them, are an tion covering the united properties, contentaid to the interpretation. Hence it is ele-ed themselves with repeating entire the dementary that in construing written language scriptive portions of each deed from Joys"it is the duty of the court to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances. It will inquire into the 'actual, rightful state of the property,' for the parties are supposed to refer to the state of the property for a definition of the terms made use of in the writing." Weed v. Woods, 71 N. H. 581, 583, 53 Atl. 1024; Swain v. Saltmarsh, 54 N. H. 9, 16; Bell V. Woodward, 46 N. H. 315, 331. "If the language is plain and unambiguous, it cannot be contradicted by extraneous evidence, for that would be giving effect to a contract not reduced to writing. * parties meant something must be assumed. If they are English-speaking people, and use the English language to express the terms and conditions of their contract, it is safe to say, in the absence of competent evidence to the contrary, that the language of the contract must be understood to convey the ordinary and usual meaning of the English language as used in the community where the parties live." Kendall v. Green, 67 N. H. 557, 562, 42 Atl. 178.

That the

It is conceded that, giving to the language of the deed the sense in which it is ordinarily employed by English-speaking people,

lin and Fiske.

It is urged that, since neither Joyslin nor of the stream, this clause (which has been Fiske owned anything upon the opposite bank called the "quitclaim" in the discussion) conveyed nothing and meant nothing, and that, river passed by the description of the land on as in the subsequent deeds all rights in the each side, the repetitions of the "quitclaim" clauses were equally useless and ineffective; and hence it must be concluded, it is urged, that the same clause in the Stevens deed to Cauger & Sullivan conveyed nothing and meant nothing. There is no reference to the prior deeds in the deed to Cauger & Sullivan, and of the competency of the evidence there may be grave doubt; but, regardless of its competency, there can be no doubt that, as the only evidence offered, it is entirely insufficient to authorize the construction of a clause expressly conveying a right as one reserving or excepting the right. It may be true that, if Fiske and Joyslin owned neither land nor water privileges on the opposite bank, the clause added nothing to their deeds; but the clause plainly expressed a purpose to convey all the rights either owned on the opposite shore. Demonstration that neither owned anything which could pass under the clause would establish that the clause was unnecessary, but would not alter the purpose expressed by the language used, while, if the

rather than that such purpose was not expressed. If the deed were erroneous on proof of the fact upon a case-made for the purpose, the deed could be reformed; but upon the trial of this issue of fact the contention has been found to be unfounded. Whether the defendants are in a position to ask for a reformation of the deed, if the ex

river, the repetition of the clause in the subsequent deeds was equally unnecessary. The meaning of the language used would not be altered by that fact. Although the lots may be practically coterminous upon the river, the plan attached to the case indicates that they are not exactly so; and the repetition of the language made sure that all that was conveyed by Joyslin and Fiske was trans-pressed intention were different from that inferred. The form of the deeds may be inartistic, but the expressed purpose is clear.

stream impossible of exercise, unless the same right existed as to the opposite side of the stream. The absurdity of such a contract would be evidence the parties did not intend to make it. The right of flowage is given in general terms. If understood to be limited to that acquired by Joyslin's deed, express language so defining it would be necessary. It is not claimed that the flowage right is so limited; but Joyslin's deed is no more effective in conveying a right of flowage on the south shore than his deed of land and water privileges on the south shore. There was no error in the ruling of the superior court that the plaintiffs had no rights in the river as far as the defendants' land extended on the north shore, though the fact of actual purpose in the conveyance of Stevens to Cauger & Sullivan found de bene cannot be considered.

tended to be expressed, does not appear. Hence it has been necessary to determine the But the argument entirely fails because controversy as to the intention actually exit is not founded in fact. The "quitclaim" pressed. A further consideration is to be clause in the deed from Stevens to Cauger found in the deed, tending to show that the & Sullivan is not identical with the clause intention expressed could not have been unas used in the earlier deeds. The clause in derstood to have been limited to the right the earlier deeds conveys the grantors' rights Joyslin conveyed. The deed contains a right to the river and to any land or water priv- of flowage. Joyslin could convey that right ilege on the opposite bank. Stevens omit-only as to his land. It is not probable Steted the word "land," limiting the conveyance vens conveyed and Cauger & Sullivan bought to water privileges. Recognizing his own- a right of flowage limited to one side of the ership of the land, in using the earlier description he varies it by omitting what he did not intend to convey, and in the next clause of the deed defines the amount of land he intended to convey on the south shore by the description of the small tract at the end of the dam. If it could be established from prior usage in the community that to the parties to this contract the sense of the expression conveying all of Stevens' right was a reservation of one-half of what he owned-that a conveyance of the land and rights on the opposite shore was to them in effect a reservation of all rights not legally appurtenant to the tract conveyed-it is not necessary to consider whether the effect claimed could be given to the deed. There is nothing in the evidence tending to such a conclusion. So far as the language is identical, the purpose expressed in the last deed is exactly what was expressed in the deeds The remaining question of construction is of Fiske and Joyslin-the conveyance of all as to the height of the dam. It is underthe rights the grantors had in the river. stood that the plaintiffs own the land upon That one deed was without effect for lack of the stream above the defendants, formerly property upon which it could act cannot pre-owned by Joyslin and by Fiske; and the vent the subsequent deed from conveying question is to what extent the defendants property within its terms. What the parties have the right to flow the same under the understood or believed would be the effect deeds of Joyslin and Fiske in 1864. The lanof the provision is immaterial. "The belief guage defining this right is "the right to of the parties as to the effect of the deed raise a dam across said river not exceeding could neither add to nor diminish its force. ten feet in height" at a point named or at Deeds will take effect according to their le- any point easterly-1. e., up the streamgal import, if at all, and not according to "but the flowage shall not be further up said the erroneous opinion of the parties as to river than would be occasioned by a dam at what that effect may be." Furbush v. Good- the aforesaid point and at the above height." win, 25 N. H. 425, 456; Reed v. Hatch, 55 This language makes it clear that the parN. H. 327, 335. ties were dealing with the question of flowThe plaintiffs' real position seems to be age-not of power obtainable by the dam. that Stevens' purpose-"his will" (4 Wig. Ev. The power obtainable was not made the § 2459) was to convey the Joyslin tract on- measure of the right. Consideration of the ly; that by mistake in following the descrip- amount obtainable has no tendency to elucition in the earlier deed without attention to date the meaning of the contract. Perley v. the changed condition an intention was ex- Marshall, 57 N. H. 206. By virtue of the pressed to convey rights which Joyslin could conveyance of the land to them, the grantees not convey because he did not own them. of Joyslin and Fiske had the right, so far as The contention is that it was not intended to the owners above were concerned, to build a

The plaintiffs and defendants are each engaged in furnishing electricity for lighting, and are competitors in the same territory. The defendants, by raising the water at their dam above the height to which they could lawfully hold it, obtained additional power which enabled them to do more business, and they obtained a portion of the business previously done by the plaintiffs. The plain

land, so long as the dam did not set the that effect during the mean or normal flow water back upon the owners above; so that of the stream such excess is an invasion of the only purpose of the clause as to the dam the plaintiffs' rights. The superior court was to convey a right of flowage above the ruled that the defendants had the right to land conveyed in fee. The measure of this maintain the dam to the elevation 76.25. right is the flowage that would be occasioned This is, however, the measure of the height by a dam at a certain spot ten feet high. to which they may rightfully raise the surDams are not built upon the surface of face of the water. If, as there is some inthe water, but upon the river bottom. It timation in the case, the fact is that the could not have been expected that the gran- flow of the stream is all utilized through the tees would lay the sills of the dam on the defendants' wheels, the maintenance of flashsurface of the water. It is equally absurd boards to the height permitted in the decree to commence to measure the height of the will furnish no legal ground of complaint to dam from that surface. It is common the plaintiffs. If the plaintiffs request it, knowledge that the foundations of a dam however, the decree should be amended so must in ordinary cases be built below the as to prohibit the raising of the water at its surface of the river bed; but as nothing be- normal or mean flow by flash-boards or other low the bed of the river would be a dam, means above the elevation 76.25, or sixteen or cause the water to flow back, the dam, as one-hundredths of a foot higher than the a construction tending to set the water back, crest of the present dam. commences at the river bed. In this case it appears that at the point selected the river bed, as is not unusual, is at different elevations. It is common knowledge that the crest of the dam over which the water flows -the spillway-is usually horizontal. In view of common experience, it is not probable that it was understood or expected a dam would be built with every point of the crest 10 feet above the elevation of the orig-tiffs claim as damages the value of this busiinal river bottom vertically beneath it. While such a dam might exactly conform to the language of the grant, the cost of so building it and the uselessness of such construction, as well as common practice, are sufficient evidence that that particular construction was not expected or required. dam constructed so as to produce no more flowage than such a dam would not exceed the right of flowage conveyed. The mean elevation of the river bed in 1864 is found (65.25). It is also found that the normal flow of water was one foot in depth. A dam 10 feet in height above the mean river bed, or to an elevation of 75.25, and so constructed as to maintain above it a depth of 1 foot of water, will raise the water 10 feet, give 10 feet head, and flow the water back precisely as if the river bed were raised in conform-ly the occasion upon which other causes operity to its natural contour 10 feet at the place specified for the dam. It is suggested that the water will not attain such a depth on the horizontal crest of a dam as it would in the stream; but this must depend upon the length of the spillway. To allow the escape of water in time of flood it may be necessary to so construct the spillway that the normal flow will not give a depth of one foot on the dam. The dam-building right is to construct a dam 10 feet high with the water 1 foot in depth upon it-to raise the water of the stream at the point defined in mean or normal flow 10 feet or to 76.25. A dam reasonably constructed so as to do this will not exceed the flowage right granted. Whether the crest of the present dam (76.09) raises the water above this point does not ap

ness lost by them and secured by the defendants. It is not clear from the case whether the raising of the water impairs the plaintiffs' power at the privilege farther up the stream, but it is found that the plaintiffs lost no business by the impairment of their powAer, and that the loss of business sustained by them was not "the natural and probable consequence" of the unlawful raising of the dam. The court therefore disallowed the claim for damages for loss of business.

The plaintiffs are entitled to recover of the defendants in some form of action damages for all injury directly and naturally resulting from the defendants' wrongful act; i. e., of which that act was the proximate cause. They cannot recover for subsequent occurrences of which the act furnished mere

ated to produce the injurious result. Prescott v. Robinson, 74 N. H. 460, 69 Atl. 522; Challis v. Lake, 71 N. H. 90, 96, 51 Atl. 260; Dow v. Gas Co., 69 N. H. 312, 315, 316, 41 Atl. 288, 42 L. R. A. 569, 76 Am. St. Rep. 173; Bixby v. Dunlap, 56 N. H. 456, 462, 22 Am. Rep. 475; 6 Thomp. Com. Neg. §§ 7193, 7196; 1 Sedg. Dam. (8th Ed.) § 111; 1 Suth. Dam. (3d Ed.) § 16. The necessary connection between the wrong and the injury is stated as "the natural order of cause and effect," "its: natural concomitant," "legal and natural," "direct and natural," "natural and continuous," "natural and probable," "natural and reasonable," "the natural consequence * * and such as might have been anticipated by the exercise of reasonable prudence," or such as "naturally and reasonably could be ex

ever, are made as definitions of proximate | plaintiffs' dam, is owned by the two parties. cause, or perhaps more accurately as state- The defendants by their wrongful flowing ments of the conditions under which the obtained and used with profit more of this wrong could be found to be the proximate power than belonged to them. The extra cause of the injury. Gilman v. Noyes, 57 power so used must necessarily have been N. H. 627; Searle v. Parke, 68 N. H. 311, 34 the property of the plaintiffs. If the deAtl. 744; Pittsfield, etc., Co. v. Shoe Co., 72 fendants have wrongfully used to their profN. H. 546, 548, 58 Atl. 242; Cool. Torts, 68- it the plaintiffs' property, does the law limit 77; Shearm. & Red. Neg. §§ 26, 739, and au- their liability to make compensation to nomthorities above cited. Whether the defend- inal damages? Reliance has been placed upants' wrongful act was the proximate cause on the case of Roberts v. Company, 74 N. H. of the injury complained of is a question of 217, 66 Atl. 485. In that case it was held fact. Ela v. Cable Co., 71 N. H. 1, 51 Atl. that adjacent riparian proprietors on the op281; Hendry v. North Hampton, 71 N. H. posite banks of a stream were tenants in 26, 51 Atl. 283; Olney v. Railroad, 71 N. H. common of the right to use the stream pass427, 52 Atl. 1097; Hamel v. Company, 73 ing over their lands, each owning an undiN. H. 386, 62 Atl. 592. vided half; and that, if one tenant used more than his share of the right, he could be required to account equitably to his cotenant for the benefit received from the use of his cotenant's right. Gage v. Gage, 66 N. H. 282, 29 Atl. 543, 28 L. R. A. 829. While "all proprietors upon a stream, from its source to its mouth, have in a certain sense a common interest in it and a common right to the enjoyment of all its capacities" (Lowell v. Boston, 111 Mass. 454, 465, 15 Am. Rep. 39), the difficulty with the application of the principles of tenancy in common in the adjudication of the rights now involved is that the rights in controversy are not held in common. The defendants' right begins at elevation 76.25. There the plaintiffs' right ends. Their rights are not common, but separate in fact and by deed. It is found that the defendants did not act with malice, which is understood to mean that they acted in the exercise of their rights as they understood it; but the wrongful flow. ing was deliberate, intentional, and continuous. The damages in a trespass of that character "include, at least, the value of the use of the premises for the period the owner is kept out of possession." De Camp v. Bullard, 159 N. Y. 450, 454, 54 N. E. 26. Upon the question of the value of the use, the benefit to the defendant is evidence. Page 455 of 159 N. Y., page 26 of 54 N. E.; 4 Suth. Dam. § 1014. If the proper action for flowing land is case instead of trespass, there may be the same exclusion of the owner from the use of his land and the same ground for damages.

Whether from the evidence reported and other evidence, if any, in the case it could have been found that the wrongful act of the defendants was the proximate cause of the plaintiffs' loss of business, is not the question presented. The plaintiffs had the burden of satisfying the trior of the fact that it was more probable than otherwise that the injury of which they complained was caused by the defendants' act. They have failed to sustain this burden. The evidence reported does not establish their claim as matter of law. The raising of the dam furnished the defendants with more power-put them in a position to do business which the plaintiffs were also equipped to perform. Why one lost and the other gained, why the defendants obtained business which the plaintiffs lost, instead of the plaintiffs getting business from the defendants, are questions which obviously are not answered by the mere fact that each had the necessary facilities. Whatever the cause of the plaintiffs' loss of business, such loss is not the necessary result of some other in the community offering the same article for sale.

Having denied the claim to special damages from loss of business, the superior court found that "the damage to the plaintiffs' realty by the raising of the * dam to an unlawful height * is one dollar," and entered a decree for $1 damages. While each riparian owner has a right to a reasonable use of the stream as it flows over his land, still, if he obstructs the stream so as to cause the water to flow back and flood the land of the owner above him, he is liable to such owner for the actual injury so occasioned. If the water be raised perceptibly upon the land above, such owner may maintain an action for nominal damages, though no actual damages are proved. Gerrish v. Company, 30 N. H. 478; Amoskeag Mfg. Co. v. Goodale, 46 N. H. 53. The finding and decree amount to a ruling that upon the facts only nominal damages could be recovered. Exception was taken to the ruling, and the plaintiffs claim that they are entitled to substantial damages.

The power of the river, from the bottom

Whether the flowing diminished the power at the plaintiffs' dam is perhaps not quite clear from the case. As to this, the parties do not interpret the findings alike; but, as it is found that the plaintiffs' power was not so impaired as to prevent their doing all the business they had to do, the ruling seems to have been put upon the ground that if the plaintiffs' power was taken away they could recover nothing, if they had no occasion to use it while the defendants were using it. In an action for flowage, the measure of damages is the actual injury to the land by the overflow, or its fair rental value dur

214; Baldwin v. Calkins, 10 Wend. (N. Y.) As no damage has been done to the real167; Chicago v. Huenerbein, 85 Ill. 594, 28 ty, it is to be presumed that whatever propAm. Rep. 626. In an early case in Massa- erty of the plaintiffs was flowed is now of chusetts for overflowing a mill privilege the same value it was before; and, as the which had been improved, but which was not claim for damages to business has failed, in use or capable of use during the time of the only ground upon which the plaintiffs the flowing, the plaintiff was permitted to can recover is the rental value of their proprecover as damages interest upon the value erty, if it has any under all the circumof the privilege if unobstructed. Hatch v. stances. If it has, it is immaterial whether Dwight, 17 Mass. 289, 9 Am. Dec. 145. In the plaintiffs would or would not have reMassachusetts the demandant in a writ of ceived any income from it if it had not been entry recovering against a disseisor is by overflowed. If the flowing took away part statute permitted to recover in that action of the power developed by the dam above, the "full, clear, annual value of the land," the rental value of the power so taken would instead of being put to a separate action be more than nominal. That the owner was (Proprietors v. Railroad, 104 Mass. 1, 12, 6 not using the power created by his investAm. Rep. 181), while in trespass for mesne ment in land and improvement would be no profits the plaintiff is entitled to recover reason why one wrongfully using it should from the tenant such profits as have been not pay the fair value of the use. Hatch v. received from the premises. Withington v. Dwight, 17 Mass. 289, 9 Am. Dec. 145. Such Corey, 2 N. H. 115. In some form of action flowing would transfer power developed by one who has been wrongfully excluded from the plaintiffs' dam to the defendants, and his realty is entitled to compensation for would be as much an infringement of the the use of his property had by the wrong- plaintiffs' property right as if the defendants doer. He is not confined to nominal dama- had directly connected their wheels with ges by the return of his property without the plaintiffs' pond. For such diversion of diminution in its value. The measure of power, one effecting it by wrong is liable damages for the permanent flowing of land for the fair rental of the power so taken. is the difference between the value of the Green Bay, etc., Co. v. Kaukauna Water Powland free from and subject to the right. er, 112 Wis. 323, 87 N. W. 864, 62 L. R. A. Wright v. Company, 75 N. H. 3, 70 Atl. 290. 579. There is no difference in principle It has never been suggested that the fact whether the power is taken by drawing watthat the landowner had not put and had no er from above the dam or by backing it up intention of putting the land to any bene- at the foot. What the defendants obtain ficial use was an answer to the claim for in either case is the use of the plaintiffs' damages; but such contention would be as property; and the value of the use measreasonable as the claim that the owner can- ures what the defendants ought to pay and not recover for the use of his land by a the plaintiffs receive. If the flowing was a wrongdoer because during the existence of mere increase of the depth of water in an the wrong he had no occasion to put it to a unimproved part of the stream not capable beneficial use. To use the illustration in of use in connection with the plaintiffs' dam, Green Bay, etc., Co. v. Kaukauna Water Pow- and capable of enjoyment only through the er Co., 112 Wis. 323, 87 N. W. 864, 62 L. R. A. defendants' dam, the power so produced 579, as well might one sued for wrongfully would not be the fair measure of value. But appropriating the use of the plaintiff's horse this is not a case of first appropriation by defend against the damages upon the ground the owner below because the limit of his that the plaintiff had no use for the horse. | right has been defined by deed for more than "If one deprives another person of anything 40 years. The right to raise the water is of value, the loss to the latter in a legal sense of value. When that is found, the rental is not lessened at all by the circumstance, if or income value during the time the defendit exist, that he intended never to enjoy it, or ants wrongfully enjoyed it can easily be to bestow it as a gratuity upon another." found. There should be a further hearing Page 333 of 112 Wis., page 867 of 87 N. W. (62 on the question of damages, which should L. R. A. 579). The owner may prefer the be assessed at the fair value of the use of property shall not be put to use. Such is the plaintiffs' right wrongfully enjoyed by his right if he considers the nonuse more the defendants. Upon this question the invaluable to him. That no use shall be made come received by the defendants from its at all may be of more value to the owner use is evidence, but the amount received is than any benefit that could be obtained from not its measure.

use.

Case discharged. All concurred.