Thurston vs. Prentiss:

*1. In any action brought on any contract of secur- [200*] ity in which usury is reserved, if the fact is made to appear, the defendant shall recover his full costs, and the plaintiff shall forfeit three-fold the amount of the usurious interest so reserved, taken or received, and shall have judgment for the balance only which shall remain due after deducting from the principal and lawful interest the said threefold amount.

2. The party paying the usurious interest may recover back three-fold the amount of the excess of interest paid in an action of debt; provided, such action shall be prosecuted within one year from the time when such interest shall have been paid.

These are the only remedies prescribed by the statute, and resort cannot be had to any other.

Our statute is nearly a literal copy of the statute of Massachusetts; with this difference, however, that the Massachusetts statute authorizes the recovery of three-fold the whole interest paid by an action of debt, or by a bill of chancery. Our statute only authorizes an action of debt.

It is a well established principle of law, that where a statute gives a new right and prescribes a particular remedy, such remedy must be strictly pursued; and a party seeking the remedy is confined to that remedy, and that only. 1 Com. Dig. 44-7-8; 9 Bac. Abr. 259, 260; 2 Burr. 803; 1 Blackf. 405; 2 Saund. Pl. and Ev. 829; 5 Johns. 175; 3 Mass. 307; 5 id. 514.

In the case of Wiley v. Yale, 1 Met. 553, it was held by the supreme court of Massachusetts, that a party who paid a greater rate of interest than was allowed by law, could not recover back three-fold of the amount of interest paid, by an action of trespass on the case, but only by an action of debt or a bill in chancery, as provided by their revised statutes.

In a subsequent case in Massachusetts, Crosby v. Bennett, 7 Met. 17, the point raised in this case was directly decided by the supreme court of that state. An action for money had and received was brought, to recover the amount of inforest

Thurston vs. Prentiss.

paid above six per cent. It was urged by the counsel for the plaintiff, that the action lay after their revised statutes had given the action of debt or bill in chancery - that those remedies were only cumulative. In support of this position, he

cited 2 Com. on Con. (1 ed.) 113, and cases there cited; [201*] Wheaton v. Hibbard, *20 Johns. 290. Shaw, C. J.,

in delivering the opinion of the court, says: "The authorities cited certainly tend to show that so long as a usurious contract was declared illegal and void, it followed, as a necessary consequence, that money paid thereon was taken illegally, and was oppressively extorted from the borrower, and, therefore, that this equitable action would lie to recover it back; but now the revised statutes expressly declare that no such contract shall be void, and in order to restrain the taking of usurious interest, the statute goes on to make specific provisions. The consideration that now by law, the contract is not void, distinguishes this case from those cited, and takes away the ground upon which they rested. The ground upon which it was formerly held, that an action for money had and received would lie, was, that it was illegal and oppressive to take more than six per cent. interest, and, therefore, it could not conscientiously be retained from the person who paid it. But under our statute, the contract is not illegal, and the party who has suffered by paying usurious interest is confined to the statute remedies. The right to recover back three times the amount of the usurious interest is given by the statute to the party who has paid, and is partly in the nature of an equitable action to recover back money which the defendant cannot conscientiously and justly retain, and partly in the nature of a penalty. So far as the statute affords a remedy to recover back money wrongfully taken — it is a substitute for the remedy at common law. If, therefore, the party might waive the statute, and sue at common law, he would avoid the provision limiting such action to two years from the payment, contrary to the manifest intent of the legis lature, and the policy of the law." The reasoning in this decision, it appears to me, is conclusive, and shows that the

Norris vs. Hill.

appellant cannot have, nor can either of the defendants have, any redress against Prentiss in this suit. See, also, 1 Met. 553, 398; 6 id. 296.

The statute gives the only remedy, and the parties are confined to it; the contract was made in reference to it; and even if the remedy by statute was repealed, yet the parties would not be entitled to a remedy in a court of equity, or by an action for money had and received. 9 Bac. Abr. 226-8; 1 Hill, 333-5.

*NORRIS et al. vs. HILL.

[202*]

Where N. and M. owned a water power, with a grist mill and saw mill, as tenants in common, and they divided a part of the property so held in common between them, one taking the grist mill and the other the

NOTE. Perhaps the most interesting points in this opinion are not fully reflected in the syllabus, and will be apparent only on a study of the opinion itself. We take them to be

1. That where two owners in common of adjoining mills, located on the same side of the strea.n, and taking their water for power for both mills through the same flume, divided at the head gates by a partition, one branch of which extends to one mill, and the other to the other, divide the property, by deeds of release, one taking the saw mill and the other the grist mill, and the branch flume which feeds the lower, or grist mill, rests over the stream and passes in front of the upper or saw mill, and the deeds of release bound the divided lands of each partitioner by the bank of the river, and no easement is reserved to the lower mill of the right to maintain its branch flume over the bed of the stream in front of the upper mill, there the ordinary rule, that a grant of land, bounded on a stream will be deemed to carry the title to the center, is suspended, and each of the partitioners is deemed still to remain a tenant in common of the land under water between the bank and center of the stream, and no reserva. tion, therefore, is necessary, of the right of the lower mill to maintain a branch flume over the lands so held in common.

2. That if the lower mill be abandoned for mill purposes, and its owner remove his machinery to new mills on the opposite side of the stream, where his water rights are incident to a different mill site, he cannot carry with him to his new mills the right which pertained to him as an owner of his old mills, and by reason thereof limit the owner of the upper mills to the use of one-quarter of the water of the stream. For, though he may be the same

Norris vs. Hill.

saw mill, and executed releases to each other, the releases must be taken and construed together as one instrument, and with reference to all the surrounding circumstances to which they obviously and di rectly point; and by such circumstances, not only the parties, but all persons claiming title under them, are bound.

It is a general rule of law and equity, that, where a purchaser cannot make out a title but by a deed which leads him to another fact, he shall be presumed to have knowledge of that fact.

A grant of land, bounded by a stream, carries with it the bed of the stream to the center, unless a contrary intention clearly appears from the conveyance itself.

The provision of R. S. p. 509, conferring jurisdiction, in cases of nuisance, on equity courts, was not intended to extend or enlarge their jurisdiction.

Where complainants owned the water power on the east side of a river, and one-half of the water power on the opposite or west side-the defendant owning the other half, and the defendant had occasionally used more than his share of the water on the west side of the river, but no suit had been brought against him for doing so, and complainants had no machinery on that side of the river to be propelled by water, an injunction will not be granted restraining defendant in the

use of the water

Where complainants, who were the owners of three-fourths of a water power, were compelled to purchase a piece of land to secure to the proprietors of the power the right to flow it, a court of equity will not decree contribution by the owner of the other fourth of the water power.

proprietor, equity will not enforce in behalf of one of his properties the rights which pertain to him as owner of the other, but in order to enforce the latter, he must maintain the same mills in operation to which those rights were incident. Abandoning those mills, he will be deemed to abandon those rights.

The other points are sufficiently indicated by the syllabus. Whether it were necessary to hold that the title to the bed of the stream remained in common after the partition, in order to give the owner of the lower mill the right to maintain a branch flume from the common dam over the bed of the stream to his own mill may, perhaps, be open to discussion. It is settled law that the grant of a mill carries also the use of the head of water necessary to its enjoyment, with all incidents and appurtenances, as far as the right to convey to this extent existed in the grantor. Rackley . Sprague, 17 Me. 281. As to what will pass under term appurtenances, see Thomas v. Wiggers, 41 Ill. 470. As to effect of uniting different mill prop erties in one owner, on his rights to convey the incidents thereto, see Perry v. Parker, 1 Woodb. & M. 280. As to effect of abandonment of mill site, see Hatch v. Dwight, 17 Mass. 289; Jewell v. Gardner, 12 id. 311; Hurd .

0.

Norris vs. Hill.

APPEAL from the Court of Chancery.

Norris and Follett, the complainants, and the defendant Hill, were the owners of separate mill property on the Huron river, at Ypsilanti; their mills being on opposite sides of the river, and supplied with water by a dam extending across the river from one bank to the other. Complainants were the owners of the water power on the east side of the river, where their mills were, and claimed to be the owners of one-half of the water power on the opposite or west side of the river, where Hill had his mills, and they filed their bill in the court below against Hill and others, to restrain defendants from using more than their proportion of the water, and to *have the rights of the respective parties to the [203*] use of the water determined; also to compel Hill to pay a just proportion of certain purchase money that had been paid by complainants for lands flowed by the dam, in order to secure the right of flowing them. The court below having made a decree in favor of complainants, Hill appealed. The facts are fully stated in the opinion of the court.

Backus & Lane, for appellee.

Buckbee & Emmons, for Hill, appellant.

By the Court, GREEN, J. The defendant seeks to reverse the decree made by the chancellor upon two grounds: 1st. That if the complainants have shown any wrong on the part of the defendant, they have an adequate remedy at law, and he therefore claims the same benefit as if he had demurred to the bill for that cause; and 2d. That the defendant has done no act which is in violation of the complainants' rights, even if such rights exist to the extent claimed by the bill.

Curtis, 7 Met. 94. Court of equity will regulate the use of the water power among part owners where their rights have been established at law, Burnham v. Kempton, 44 N. H. 78; Ranlet v. Cook, id. 512. Title of ripa rian owners of navigable streams may, by clear indication of the intention in the grant, be restricted to the banks and the bed of the stream reserved, Mariner v. Schulte, 13 Wis. 692; Arnold v. Elmore, 16 id. 509; Yates v. Judd, 18 id. 118.