#### TOBIAS KESTLER AND G. LYERLY v. JOHN H. VERBLE.

Where one owned a'tract of land, whereon there was a mill, and afterwards sold a part of the land, including the mill, it was Held that an easement in the lands reserved, passed to the purchaser, entitling him to flood them to the same extent as they were at the time of his purchasing the mill; and in a suit against the purchaser for overflowing the reserved land, it was Held further, that it devolved upon the plaintiff to show that the dam had been since raised.

Tms was a petition filed by the plaintiffs in the County Court of-Rowan, against the defendant, for overflowing plaintiffs’ land, by water thrown back by a mill-dam, and having come up by appeal to the Superior Court, was tried before Heath, J., at Fall Term, 1859.

The plaintiffs proved that the land owned by them, and the lauds owned by the defendant, were all owned by one Thomas E. Brown in 1850, and for some time previously thereto ; that a stream of water ran through the entire tract; and that there were, at and prior to 1850, on said tract, two mill-dams and two mills, on the said stream, both of which mills were running, occupied and used, at the time of the sale to the defendant, hereinafter mentioned ; that in 1850, said Brown sold the land, whereon the lower mill was and is situated, including the mill, to defendant, and subsequently sold the upper part of the tract, including the mill, to one Smith, under whom plaintiffs claim. The defendant has the older deed from Brown. It was further proved that, at and prior to the sale to defendant in 1850, the water was ponded back, to some considerable extent, by the lower dam, upon the land now *186owned by plaintiffs. There was conflicting evidence as to whether the lower dam had been raised, or not, since the sale in 1850 ; the witnesses, for the plaintiffs, swearing that the water was ponded back further, on the plaintiffs’ land, than it was in 1850, and that the dam had, in their opinion, been raised, and that its ends had been extended back further on the shore ; while the witnesses for the defendant, swore that the water was no higher than it was when the defendant purchased tire land in 1850; that from their observation, the dam had not been raised ; that the extensions of each end of the dam did not raise the water higher, but they were rendered necessary by the earth’s being washed away by freshets at these places, and that the extensions were on defendant’s land. The presiding Judge charged the jury:

1st. That the defendant had a right to keep his dam of the same capacity, as it was at the time he purchased, and if he had not ponded the water further back on the plaintiffs’ land by raising the dam, or enlarging it at the ends, than it was ponded at the date of the purchase, the plaintiffs could not recover.

2ndly. That if the defendant had raised his dam, or increased it at one or both ends, so as to pond the water back further on the plaintiffs’ land than the dam ponded it, at the time of his purchase, then, the plaintiffs would be entitled to recover. The counsel for the plaintiffs then prayed the instruction, that if it were established, that the plaintiffs’ land was overflowed by back-water, from the defendant’s mill-dam, it was then incumbent on the defendant to show that the water was backed up to the same extent on plaintiffs’ land, by the dam, before defendant bought from Brown. The Judge declined giving the instruction in this form, but submitted the case to the jury on the instructions previously given. Plaintiffs’ counsel excepted.

Yerdict for the defendant. Judgment and appeal.

Fleming, for the plaintiffs.

Boyden and Osborne, for the defendant.

*187Manly, J.

It seems entirely clear to us, upon the sale of the parcel of land, including the lower mill, to the defendant, Yerble, that an easement in the lands, reserved by Brown, passed by implication to defendant, to the extent, at any rate, held by the Judge below. The defendant purchased, as an appurtenant to his mill, the right to keep the water-power in the condition it then was, for the purpose of propelling his machinery. And the subsequent sale of the residue of his land, including the other mill, by Brown, passed the estate to' the purchasers, Kestler and Lyerly, encumbered with this easement. Brown could not'disencumber it, nor can his vendees do it without the concurrence of Yerble. The instructions to the jury are based upon this view of thecase, and are, in our opinion, entirely correct.

The only ground for a complaint to rest upon is, the assumption that Yerble’s dam had been elevated, and the water raised higher upon the land of the plaintiffs, than it was accustomed to stand prior to defendant’s purchase. This was the gist of the action, and we take it, the burthen of proving it, was upon the complainants.

The instructions asked for, were, therefore, properly refused. There is no error.

Per Curiam,

Judgment affirmed.