dam, if the one existing at the time of the conveyances should be swept away, much less has the orator against the assignees of such grantees. The orator does not, on any principle in law or in equity stand so related to the conveyance by Cleveland to Aldrich & Burbank and to the conveyance by Taylor to Hays that he can take advantage of the clauses inserted therein in regard to building a new dam or keeping the dam. As concerns the orator those were provisions which apply between the grantors and grantees in those deeds. On these views the orator, on the facts set forth in his bill, if amended as indicated, would have no right to the relief prayed for against the owners of the grist mill and owner of the starch factory premises.

(2). Has the orator any equitable right arising from the conveyances set forth in the bill to compel the owner of the saw mill premises and rights to contribute toward building the new dam? By his deed to Benjamin F. Herbert Calvin Harman could not impose, and did not undertake to impose, the burden of any easement upon that portion of the common water power and water rights which he had before conveyed with the grist mill and starch factory premises. The description of what that deed conveys is peculiar and should receive attention. It reads: "The right of drawing water from the dam across Black river just above Bean's clothier shop for the purpose of doing all things that may be done by water power in carrying on the tanning and dressing of leather, provided at all times that said water shall not be used for any other purpose nor to the injury of privileges granted heretofore for other purposes." The privileges before granted by Harmon were the grist mill and starch factory privileges. The privilege granted by the deed was not to create a burden upon such privileges, and so become an injury to them. Notwithstanding the deed in the granting part speaks of the premises as "a certain piece of land," the thing described as granted is the right of drawing water from the dam, clearly an easement as

The deed conveys

characterized by the orator in his bill. nothing more, no land-nor does it limit the place whereon the water taken is to be used. From the deed the easement granted cannot be determined to be an appurtenance to any other particular premises. From the record of the deed no subsequent purchaser of other rights in the water power would receive actual or constructive notice that the right granted was an appurtenance of any certain premises. It was an easement to which by the terms of the grant the dam then in existence was servient, and only to the extent the grantor was owner thereof. The dam existing was subject to decay and to destruction by decay, or by being swept away by the water. The easement arose from the power created by that dam. It was an easement or right to use for service a structure which of itself was perishable. The grant by Harman to Herbert of this right forever was a grant of it only so long as it continued in existence. It was not unlike the grant of a way through a part of a building which one owns, to another part of the same building which the grantee has the right to use. When the building decays or is destroyed by fire no grant to rebuild it would be raised by implication. The deed says nothing in regard to Harman, or his heirs or assigns being obliged to replace the existing dam by a new one when it should from any cause cease to exist, and no implication arises of such an obligation. It is clear that no such obligation was intended to be incurred. The consideration for the deed as expressed therein is only ten dollars. A covenant or agreement never arises by implication out of a transaction against the intention of the parties to it. The right to take water is neither land nor tenement and covenants made in conveying such right are not covenants which run with the land, and are not available, at law, to the assigns of the covenantee. Mitchell v. Warner, 5 Conn. 515, in which the question is fully considered. By such conveyance the grantee acquires

only an incorporeal hereditament. Gould on Waters, § 299; Tuttle v. Harry, 56 Conn. 194; Watuppa Reservoir Co. v. MacKenzie, 132 Mass. 75.

By the deed from Harman to Benjamin F. Herbert, the latter, his heirs and assigns acquired the right to take water for the purposes named from the then existing dam only so far as the grantor, or his assigns had rights therein and could become thereby obligated. Linthicum v. Ray, 9 Wall. 241: 19 L. C. P. Co. 657. Hence the bill on the basis on which it is drawn and seeks relief is insufficient.

(3). What right to use the water from the present dam in his tannery arising from the fact that he was allowed to rebuild the dam under his arrangement with Mrs. Field under a claim of the right, and what rights, in equity, he has to require contribution towards the expense of rebuilding the dam of those owners who are using the power thereby created, under our decisions, especially under Hill v. Shorey et al, 42 Vt. 614; Webb v. Laird, 59 Vt. 108 and Tullar v. Baxter, 59 Vt. 467; and how his agreement with Mrs. Field may effect his equitable rights against the mortgagees of the grist mill and its water rights, we have not considered and do not decide. The bill is not drawn with reference to a determination of his rights, if any, under such circumstances.

The decree sustaining the demurrer and adjudging the bill insufficient affirmed, and cause remanded.

M. G. JEFFERS vs. L. D. HAZEN.

May Term, 1897.

Present: Ross, C. J., TAFT, Rowell, Tyler, MUNSON and THOMPSON, JJ.

Revocation of Reference.

When a reference has been agreed upon and made a rule of court, it cannot be revoked by a party until the time for making the report has expired, but when the time has elapsed without a report being made, either party may discharge the rule.

Before the present statute requiring referces to report to the next term "after the hearing before them is closed," it was the rule that the report should be made to the next term after their appointment, and the present reference having been made under that rule was legally revoked for want of a report although the hearing had not been closed.

ASSUMPSIT.

The

Rule of reference discharged at the March Term, 1897, Essex County, Start, J., presiding. defendant excepted.

Bates & May for the defendant.

The reference was not revocable except for legal cause. Knapp v. Fisher, 49 Vt. 94.

Though the parties select the referee, the court appoints him, and the court should not discharge its rule without cause. Haskell v. Whitney, 12 Mass. 47; Dexter v. Young, 40 N. H. 130; Ferris v. Munn, 22 N. J. Law 161.

Harry Blodgett and W. P. Stafford for the plaintiff. Attention is called to Rev. Stat. (1839) p. 162, §§ 21 and 22, which became R. L. 985 and 986; Acts of 1884, No. 129; V. S. 1437, 1438 and 1439; also to the following cases construing the statute: Rice v. Clark, 8 Vt. 104; Baxter v. Thompson, 25 Vt. 505; Cook v. Carpenter, 34 Vt. 121; Lazell v. Houghton, 32 Vt. 579.

TAFT, J. This cause was referred at the March Term, 1892, and continued from term to term until the September

term, 1895, when an order was entered that the plaintiff should procure a report at the next term or become non-suit. Hearings were had between that term and the March Term, 1896, but without fault of either party, were not closed, and the case was continued at the March and September Terms, 1896. At the March Term, 1897, no report having been made, the plaintiff was permitted to revoke the order of reference, the court ruling as a matter of law that he had the right to do so. Whether this ruling is erroneous is the only question in the case before us.

The county court may by agreement of parties appoint a reference in any cause pending therein. V. S. § 1437. After a reference has been agreed upon and become a rule of court a party cannot revoke the reference and discharge the rule until the time for making the report has expired. But when such time has elapsed, and no report made, a party is not compelled to submit to a new reference and may discharge the rule if he so desires.

At the time this reference was agreed upon, no time was specified in the statute when the report should be made, but it was always treated and the rule issued as though the report must be made at the next term of court. The cases in our reports involving this question are in accord with that rule. In Rice v. Clark, 8 Vt. 104, it was held "The court have no power without consent of parties to enlarge a rule of reference." In that case no report had been made by the referee, and it was held that it required the consent of both parties to enlarge the rule. In Baxter v. Thompson, 25 Vt. 505, a report had been made and a motion to discharge the rule was denied and judgment entered on the report. In Lazell v. Houghton, 32 Vt. 579, the referees continued the hearing before them past the term when they were required to make a report, but the party appeared before them, and the cause was fully heard, and the referees reported that the rule of reference was enlarged, but the defendant objecting to the acceptance of the report, the