Page:Federal Reporter, 1st Series, Volume 4.djvu/809

MA80N ». OOTTON, 795 �parties, a court of equity may withhold its hand — ^leaving the parties to the remedies aflForded by law. The river not hav- ing sufi&cient water for both mills, independent of each other, if plaintiffs may use the water after it has passed from defendants' xnill with substantially the same results as if obtained by continuous flow through their own race, the refusai so to use it -would be mere captiousness, in which the court ought not to aid them. In this view the evidence has been carefully examined to determine the faot whether plain- tiflfs may use the water delivered into their race out of defendants' mill as well as if otherwise obtained. And although the evidence is strongly conflicting and not of the most satisfactory kind, it seems reasonable to believe that the water may be used by both parties. Witnesses testify that with apparatus well known, and already applied in defendants' mill, the water may be sent out to plaintiffs' race in even and continuous flow; and, if so transmitted, the use of it one-half mile below would seem to be free from difficulty. Borne testimopy is given to show that the water was at times last winter shut off by Watson, to gain a head for his mill, and no doubt is entertained as to the injury to plaintiffs by sueh conduct. But if those acts of his grantors can be imputed to Carter Cotton, the present defendant, it does not follow that the present defendant is now inclined to the same course, or that he will persist in it when informed that he has no right to proceed in that manner. The ques- tion for present consideration is larger and broader than that which may arise from the manner of using the water by defendant, and relates to any use of it by him during a great part of the year. To main tain this injunction would deny the right of the defendant to any use of the water when the volume of the stream is not sufficient for both mills, and when possibly the water may be used by both mills with equal advantage. It is true that .we bave no right here to impose upon the plaintiffs the terms which the defendant asks to establish — that they shall take water from his tail- race; but we can deny to plaintiffs relief in equity, leaying them to their r.ction at law, in which ail the circumstances ����