[1] Waters and Water Bights—Partition—Reservation op Water Rights—Quieting Title—Form op Decree.—Where easements to take and divert waters from a stream at a certain point are reserved in a deed partitioning land riparian to the stream, in an action to quiet title to the easements the decree is not objectionable in declaring that the plaintiff's right to take the water at the designated point is “part and parcel of” his land, that is, riparian in character, it being the obvious purpose and effect of the easements to provide a means whereby plaintiff could obtain his share of the water and carry it to his land for use thereon in the exercise of his riparian right.

[2] Id.—Reopening Case—Additional Testimony—Discretion.-—In such a ease, where after the trial had closed and the cause had been submitted to the court for decision it was reopened at the request of one of the parties for the sole purpose of introducing additional testimony to identify the location of the roads and the quarry mentioned in reservations not involved in the present issue, the court did not err in refusing to allow the ease to be opened upon other subjects.

[3] Id.—Basements Acquired by Grant or Reservation—Disuse.— Where rights or easements are acquired by grant, or by a reservation having the effect of an implied grant, the owner does not lose them by mere disuse.

[4] Appeal—Section 4%, Article "VT, Constitution—Construction. Under section 4% of article VI of the constitution, the appellate courts cannot set aside a judgment rendered in the superior court for any error in the admission or rejection of evidence or in procedure, unless the court, upon examining the record, shall be of the opinion that the particular error complained of has resulted in a miscarriage of justice.

[5] Judgments—Evidence—Estoppel.—Although a judgment in another action had not become final at the time of its admission in evidence in the present action, but will be final when affirmed at the time of the decision on appeal in this action, and at that time will be an adjudication and constitute an estoppel, the ruling admitting it in evidence cannot result in a miscarriage of justice.

[6] Waters and Water Rights—Riparian Proprietors—Relation to Each Other.—The rights of riparian proprietors on the same stream, with respect to each other, are mutual and reciprocal, neither having a right to the whole stream as against the rights of the others and each being entitled only to his reasonable share thereof, considering the rights and needs of the other; and such rights must be exercised and the use must be made only on the parcel to which the rights attach.

[7] Id.—Easements—Quieting Title—Judgment.-—In an action to quiet title to certain easements (reserved in a deed partitioning lands riparian to a stream) to take and divert waters at a certain point, it is not proper for the decree to provide that the defendant cannot use the waters, or any part of them, on a certain tract of land, except to supply water for drinking purposes to domestic animals pasturing thereon during a certain period of each year, as it is not within the province of the court thus to limit the riparian use of water. The owner of the tract may use all the water at any place on that tract, provided it is not consumed and is all returned to the channel before it passes the boundary of the tract, and there may be years when pasturage on the tract will be available at other times of the year than that allowed by the judgment, in which event the use of the water for drinking should not be forbidden.

3. Mere nonuser as operating to extinguish an easement, notes, 1 A. L. B. 884; 9 A. L. R. 423; 18 L. R. A. 535.

6. Nature of riparian rights, notes, 9 Ann.. Cas. 1235; Ann. Cas. 1913E, 709; Ann. Cas. 19150, 1026; 41 L. R. A. 744.