Society for Establishing Useful Manufactures v. Low. that the society are bound by the terms of the covenant to furnish the stipulated supply of water, there is clearly no covenant as to the degree of pressure under which that supply should be furnished. The answer alleges, that during the continuance of the lease to Beggs, a supply of water sufficient to maintain that head at all times was not furnished. If, then, the supply to maintain such head could be furnished, and the parties to the lease intended that it should be, would there not have been an express covenant to that effect? If, on the other hand, by reason of a deficiency of water in the dry season, or from any other cause, that head could not at all times be maintained, is it probable that the lessors covenanted or intended to covenant to furnish such supply? Is it not more probable that the lease was made and accepted by the lessees, subject to that fluctuation of the head to which all water power is subject during the course of the year? Be this as it may, the obvious fact is that no such covenant was made, and none can be implied. The defendant alleges that he is ready to place and use in his mill, a wheel capable of using only one square foot of water under a head of thirty inches, as soon as the wheel can be constructed. But that is no compliance with his covenant to draw the water from the canal in the mode specified in his lease. Again he alleges that he is willing to insert the aperture as required by the covenant, as soon as the complainants will furnish, the year round, a foot square of water under a head of thirty inches. But he has no right to annex such condition to the performance of his covenant. There are also allegations in the answer, that by a contract of the complainants with a mill owner on the upper canal, the supply of water in the middle canal had been irregular; and that, by reason of the increased velocity of the flow of water through the canals, the head under which the water is drawn upon the wheel has been diminished, and by reason of the increased quantity of water thrown into the lower canal, the efficient head and fall, and consequent power of the wheel, has been diminished. It may be that these and Society for Establishing Useful Manufactures v. Low. other similar causes may furnish grounds of action at law, or in equity, against the complainants. But they afford no reason, in my judgment, why this injunction should not issue. On the contrary, they evince the propriety, if not the actual necessity, of the issue of the injunction, to restrain the mill. owner from drawing more water than by his covenant he is entitled to. It is obvious that if every or any mill owner is permitted to draw water without limit, he must do so to the prejudice, not only of the complainants, but of every other mill owner upon the power. The velocity of the flow of water in the upper canal is increased, and by this increase of water in the tail-race or lower canal, the efficient head and fall at every mill upon that level is diminished. The most effectual mode of guarding against these grievances is to require each mill owner to draw water only through the aperture prescribed by his lease, so as effectually to prevent the use of more water than he is entitled to. It is the usual mode adopted on large water powers, where different mill owners draw their water from the same reservoir, and seems absolutely essential to protect the rights both of lessor and lessees. To allow the existence of the evils to prevail as a ground for not enforcing the use of the gauge at every mill, is simply to allow the effects of the wrong to justify its continuance. In the case of The Society v. Butler, 2 Beasley 498, the Court of Appeals refused to enforce the specific performance of a contract made by the complainants, for the reason, among others, that its performance would operate injuriously to the interests of other lessees. I took occasion in that case, to express my views of the peculiar relation occupied. by the complainants in regard to the lessces of their power. The same reason which influenced the court in denying the injunction in that case, affords an inducement why the defendant should be held to the specific performance of his covenant to use no more water than he is entitled to, and to measure the quantity used by the prescribed form of gauge. The injunction is granted. The defendant will be allowed twenty days to procure and insert the gauge. Brown v. Richards et al. JOHN WARDELL BROWN 28. SARAH E. RICHARDS and others, the widow and heirs-at-law of Jesse Richards, deceased. 1. A widow joined with the heirs-at-law of her deceased husband in the execution of two mortgages to satisfy a part of the indebtedness of his estate, pledging her individual interest in the lands of which he died seized, to the payment of that specified indebtedness. To secure the remaining indebtedness, the heirs-at-law, alone, subsequently executed other mortgages upon the same real estate. By an arrangement between the executors and the subsequent mortgagees, they were authorized to enter upon the mortgaged premises, sell all the standing timber fit for market, receive the proceeds of sales, and appropriate them towards the payment of the mortgages in such proportions as might be agreed upon by the mortgagees respectively. Under this agreement sales of timber were made to a large amount. By a subsequent arrangement between the first mortgagee (complainant in this suit) and the subsequent mortgagees, the proceeds of these sales were applied, not to the complainant's mortgage, which was executed by the widow, but to the subsequent mortgages, the holders thereof guaranteeing the pay ment of the complainant's mortgages. Held First. The interest of the widow cannot be thus subjected to the encumbrance of the entire mortgage debt. It is liable only for the debt secured by the mortgages to the complainant, executed by herself. Beyond that, it is unencumbered. Second. The widow is entitled to have her claim for dower satisfied out of the proceeds of the sale of the land, as though the entire net proceeds of the sale of the timber had been applied toward the satisfaction of the complainant's mortgage, Third. To afford the widow the protection to which she is entitled, and to secure to her the full value of the dower in the equity of redemption, it is necessary that the entire value of the timber cut upon the premises should be credited upon the mortgage to which she became a party. 2. A widow is entitled to dower in wild or unimproved lands. 3. If the land be sold under the mortgage, the value of the dower in woodland is ascertained by the same rule which is applicable in any other case. 4. Where a wife's inheritance has been sold and conveyed by the husband and wife, and the proceeds have been used by the husband, without any contract with the wife for repayment, the wife, after the death of the husband, has no claim in equity upon the real estate of the husband, as against his creditors, Brown v. Richards et al. Mr. J. Wilson, (with whom was Mr. J. L. N. Stratton) for the Mount Holly Bank, one of the defendants. The bill is an ordinary bill for foreclosure, against the widow, the executors and heirs of Jesse Richards, deceased. The complainant's mortgages were given by three of the sons and devisees, who were also executors, also by the widow and other children, for $37,000, on Batsto, and other tracts in Burlington and Atlantic. The complainant released all the lands in Atlantic, and part of those in Burlington. The Mount Holly Bank holds a subsequent mortgage for $20,386, and the Medford Bank for $6695, executed by the same parties, except the widow. There were also sundry subsequent judgments. There was a prior mortgage upon the premises executed by Jesse Richards and wife to Quinton Campbell, in trust, for $13,475. The banks, by their answer, admit the priority of the complainant's mortgage, and set up rights under their own. The controversy principally arises under an agreement between the executors and the banks, dated the 4th of January, 1858. By the will, the widow was to receive the interest of $100,000, instead of dower, and there is strong reason to believe that the executors, with her consent, so managed the estate as to give her that amount instead of dower. Large tracts of land were sold by the executors, the complainant releasing his encumbrance, and the widow releasing her dower. Subsequent to the agreement of 4th January, 1858, and by virtue of that agreement, repeated sales of timber were made by the executors, by whom the conditions of sale were signed. The widow never applied to have her dower assigned. The presumption is that she determined to accept the provision made by the will, in lieu of dower. The expectation was that the estate would be sufficient to pay her that amount. Brown v. Richards et al. The widow, before the assignment of dower, has no estate; it is a mere chose in action. 4 Kent's Com. 61; Den v. Dodd, 1 Halst. R. 367; Andrews v. Andrews, 2 Green's R. 141; Davison v. Davison, 3 Green's R. 235, 241. If dower had been assigned, she would have been but tenant for life, and entitled only to estovers. In some of the states it is held that the widow is not entitled to dower in wild lands, though in this state it is otherwise. Doughty v. Doughty, February T. 1856, manuscript opinion of Chancellor Williamson. In regard to wild lands, the widow could have only nominal damages for the waste by cutting timber. The timber belongs to the heirs, or those having the estate of inheritance. Whitfield v. Bewit, 2 P. W. 240; Bewick y. Whitfield, 3 P. W. 267; Pyne v. Dor, 1 Durnf. & East. 55. But admitting the widow's right, her dower is barred. The sales were being made for nearly three years, with her knowledge and assent. Her answer does not deny ignorance of the agreement made by the executors. A widow may waive dower by her acts. If dower is not barred, the court, after the sale of the timber and credit for the proceeds given on the mortgages of the bank, cannot transfer those credits to a prior mortgage. The answer also claims that the proceeds of the property of Mrs. Richards, sold in Philadelphia, were expended on the Batsto property, and on that ground she claims the protection of this court. That property was sold, and the investment made prior to the date of the mortgage, and cannot affect or impair the legal rights of the mortgagees. Mr. Woodhull, for Mrs. Richards. The widow executed the complainant's mortgage, but was no party to the mortgages to the banks. Her dower right was pledged merely as a security for the debt to the complainant. There is equity, therefore, in applying the proceeds of sales of timber growing on the premises to the first |