Denton v. Leddell. gage, and to relieve the defendant administrators, and the estate, from all further liability on the bond and mortgage to Richard Manley. DENTON and wife rs. LEDDELL. 1. No one can have an easement in his own lands; and if an easement exists, if the owner of the dominant or servient tenement acquire the other, the easement is extinguished. 2. But if the owner of a tract of land, of which one part has had the benefit of a drain, water-pipe, or water-course, or other artificial advantage in the nature of an easement through or in the other part, sells or devises either part, an easement is created by implication in or to the other part. And this is the case even if it is the servient part that is sold or devised. But this is confined to continuous and apparent easements. * * 3. The testator devised to the defendant a tract of land on which were a saw-mill, dam, and mill-pond. He devised to the complainant a farm through which the mill-stream flowed to the defendant's land. By a subsequent clause in the will, he gave to the defendant, as appurtenant to the saw-mill upon the tract devised to him, "the right to the owners of the mill at all times thereafter to raise the water in the pond till the surface of the water should reach a mark on a rock, &c." The testator directed that the lands devised to the complainant should "be subject to said right and privilege as aforesaid, and subject to such flowage and damage as might be consequent on such raising of the water." Held, that the defendant is restricted to the mark on the rock as the limit to which he can raise the water on the complainant's land. The clause limiting the right of flowage restricts the defendant from raising the water to the height to which it was raised by the dam at the testator's death. 4. The clause restricting the height to which the defendant may raise the water on complainant's land, does not limit the height at which defendant may keep his dam, except that he cannot keep it at any height in such state that it throws back water higher than the limit so fixed. 5. Where a question was one proper to be tried on an issue directed, if such issue had been applied for, but both parties have proceeded to take testimony at great length, and allowed the hearing to be brought on, without applying for an issue, it is the province and duty of this court to decide it, if the evidence is such that the court can arrive at a satisfactory conclusion. 6. When the fact of a nuisance is clear, especially when it is not disputed, a court of equity will interfere without a trial at law. Denton v. Leddell. Argued upon bill, answer, and proofs. Mr. Pitney, for complainants. Mr. Vanatta, for defendant. THE CHANCELLOR. The complainant, Mrs. Denton, owns a farm through which a stream runs upon the adjoining lands of the defendant, William Leddell, where it is used to drive a mill. The, complaint is that the defendant maintains his dam, and flows back water on the complainant's lands higher than he is entitled to do. The object of the suit is to compel him to lower both the dam and the water, and to fix and settle the height to which the water may be raised. The complainant and the defendant both derive title to their respective lands from the will of their father, John W. Leddell, who died April 15th, 1865. The will was dated July 1st, 1859; the last codicil, March 18th, 1863. He had, some years before his death, put each of them in possession of the property which he devised to them, respectively. In 1850, by the direction of the testator, a mark had been made by the defendant on a rock in the stream at the upper side of the lands devised to Mrs. Denton, and on the boundary between this and the lands of Elias Vance. This mark was for the purpose of showing the height of the water at its ordinary state. A certificate of making this mark, and describing the rock and the mark, was signed by the defendant and J. B. Mellen and J. P. Sutton, who were present and aided in making the mark; this certificate is dated October 26th, 1850. The defendant, in the lifetime of his father, had raised the dam on the lands devised to him, so as to raise the water above the mark on the rock and above the rock itself, and had purchased from the owner of the lands along the stream above Mrs. Denton's farm, the right to raise the water on these lands. This raising was done and purchase made with Denton v. Leddell. the knowledge of his father before the date of the will, and without any remonstrance by his father. The third clause of the will devised to the defendant, among other tracts of land, the tract on which the mill, the dam, and mill-pond were. The fourth clause devised several tracts to the complainant, including the farm through which the mill-stream flowed to the lands of the defendant. The ninth clause gave to William, as appurtenant to the saw-mill upon the lands before devised to him, "the right to the owners of the mill at all times thereafter to raise the water in the pond till the surface of the water should reach a mark made by his son William, in the presence of James Mellen and Joseph Sutton as witnesses, on a rock on the lower or east side of the road from Washington corner to the house of Mellen;" stating that this mark had been made on this rock where the surface of the stream struck and ran round said rock from time immemorial, to show what had been the height of said stream at said rock. And he directed that the lands thereinbefore devised to his daughter should "be subject to said right and privilege as aforesaid, and subject to such flowage and damage as might be consequent on such raising of the water." The first question in the case is upon the effect of these devises. The complainant contends that the defendant is restricted to the mark on the rock as the limit to which he can raise the water on her land. The defendant claims the right to raise it to the height to which it was raised by the dam at the death of the testator, when the will took effect. The devise of the mill lot in the third clause, standing alone, would convey, as part of the mill lot, the right to keep the water on Mrs. Denton's lot at the height at which it stood at the death of the testator, that being the time when the devise took effect. No one can have an easement in his own lands; and if an easement exists, if the owner of the dominant or servient tenement acquire the other, the easement is extinguished. For an easement is a right in the lands of another. Denton v. Leddell. But if the owner of a tract of land of which one part has had the benefit of a drain, water-pipe, or water-course, or other artificial advantage in the nature of an easement through or in the other part, sells or devises either part, an easement is created by implication in or to the other part. And this is the case even if it is the servient part that is sold or devised. But this is confined to continuous and apparent easements. This doctrine was established in England in the reign of James I., in the case of Nicholas v. Chamberlain, Cro. Jac. 150, and is well established by subsequent decisions in England and in. this state. These views are considered and assented to in the opinion in this court in Fetters v. Humphreys, 3 C. E. Green 260, and in the opinion of the Court of Appeals where the decree was affirmed, in 4 C. E. Green 471. But fixing the height to which the defendant should be entitled to keep the water in the ninth clause of the will, although it does not expressly limit that as the height, must. be held to limit the right to that height by implication. This implication is raised by the maxim expressio unius est exclusio alterius. This has been applied in many cases to limit the effect given by construction to grants and devises, as in the present case. In Hare v. Horton, 5 Barn. & Ad. 715, the Court of King's Bench so limited the effect of a mortgage. The mortgage conveyed an iron foundry and dwelling-houses, with the appurtenances, and enumerated afterwards the fixtures in the dwelling-houses. Had it not been for this enumeration the mortgage of the iron foundry would have carried with it all the tools and fixtures, including the steam engine, cranes, and presses fixed in the earth and walls, but these were held excluded by reason of the enumeration of the grates, boilers, bells, and other fixtures in the two dwelling-houses, and the brew-house thereto belonging. In The King v. Sedgley, 2 Barn. & Ad. 66, the same doctrine. was applied to a statute. In Sprague v. Snow, 4 Pick. 54, the doctrine was applied to a case much like the present. grant of enough of the water of a stream for the use of a fulling mill was held to limit the grant of the water to that A Denton v. Leddell. quantity, although the whole of the stream would otherwise have passed by the grant in the same conveyance of the land which included it. In Hiscox v. Sanford, 4 R. I. 58, the same application is made of the doctrine. The effect of an express covenant in a deed or lease in limiting any implied covenant which might else arise, is well established. Nokes' case, 4 Rep. 80; Merrill v. Frame, 4 Taunt. 329; Rawle on Covenants for Title 356, (ed. 1860, 483.) I think there is no room for doubt on this question. There is no necessity, where the rule of law is clear, of sending the question to a court of law, or requiring the decision of a court of law in the case. A second question arises as to the mark on the rock referred to in the will. The complainant asks that a certain mark on the rock be established as the mark referred to in the will, and as the limit of the height of the water. Although the defendant does not deny in his answer that this is the mark, he disputes it in his own testimony, and that of several witnesses. There is no dispute as to the identity of the rock. The defendant contends that the mark referred to in the will and in the certificate signed by him, was made on top of the rock, on a part that has since scaled off. The complainant contends that it is the mark now on the northwest corner of the rock. This is a mere question of fact. The testimony is contradictory. I think, by the clear weight of evidence, the mark now on the rock is the mark referred to in the will. First. It corresponds with the description of the mark in the certificate. That is signed by the defendant, who made the mark, and he admits the certificate to be genuine and signed at the time; this describes the mark as on the northwest side and end of the stone, and a mark upward, about three inches from the end of the mark. The stone is nearly in the shape of an oblong parallelogram, one of its longer sides having the direction of a little east of north, so that this side is substantially the northwest side; it is the only one that can be called the northwest side. The mark begins on |