case martin versus style and shearman at the roll one seize in fee of upper  and low mill lease the low with the stream and covenant for quiet enjoyment  and after lease the upper and the lessee covenant not to divert or pen up the  say stream to the prejudice of the low mill the lessee of the low mill may  bring a bill on breach of this covenant in the room of his lessor for a  injunction without first bring a action of trespass sir James clark be seize  in fee of the upper and low mill make a lease of the low which be cornmill  with the watercourse thereto appertain to the plaintiff for twentyone year and  covenant for himself and those claim under he that the plaintiff shall quiet  enjoy sir James afterward let we the upper mill which be four powdermills and  a cornmill to the defendant style who covenant that he will not divert convert  or turn by himself his workman or under tenant any of the stream or  watercourse come down to the say mill or pen up the say stream whereby the low  mill may be prejudice for want of water and style make a under lease of the  cornmill to the defendant Sherman the plaintiff bring this bill against the  defendant to have the benefit of this covenant in the place of sir James clerk  who have covenant for his quiet enjoyment and assign as a breach that the  defendant Sherman have pen the water up so high that the stream run back to  ember mill instead of run down to the plaintiff mill and the plaintiff read  evidence to prove that the defendant pen the water up so high pure to distress  he and turn it on the ember mill on the other hand the defendant endeavour to  prove that it be necessary to the work their own mill that the stream shall be  pen up so high that the plaintiff mill be enlarge draw more water than usual  and that dam up the stream do not make it run back as they have try by lie  straw on it mosely report master of the roll the landlord have covenant with  the plaintiff that he shall quiet enjoy the stream and watercourse the  plaintiff be entitle to stand in the place of the lessor to have the benefit  of the defendant style covenant not to prejudice or hurt the plaintiff mill  and to a perpetual injunction without first bring a action of trespass and I  will grant the injunction accord to the word of the covenant but then if the  plaintiff shall apply to the court for a breach of this injunction the  question will come in dispute how high the defendant may pen the water which  be not settle by the evidence on either side and one witness for the defendant  swear that the high the water be pen up the better his mill work and then  though the pen may be a prejudice to the plaintiff mosely report er p it be  not a breach of the covenant for the defendant himself be in the first place  to have the full benefit of the water the plaintiff can have a quod to let  pass for that lie only for the owner of the inheritance king so that I be only  in doubt how to give the plaintiff a proper relief and this case be not like  to the establishment of a right to a watercourse but rather like to the settle  of boundary and may be determine either by person choose by the party to be  approve of by the master who may settle how high the defendant may pen the  water consistent with his covenant or by commissioner but at last the master  of the roll direct three issue to be try first whether the defendant have pen  up the water consistent with his covenant or not second if not how much the  plaintiff be damnified thereby and three how high the defendant may pen up the  water consistent with his covenant mosely report Friday march the that