¶1It would seem from the deed from ' Jacox to Clark, so far as it is set forth in the bill, that the water was to be used, in such way, by Clark, as to be turned back, after it had been used, into the stream on Jacox’s land.
¶2If this should prove to be the true construction of the grant, it appears Clark gave a different construction to it, and that Jacox acquiesced in such construction, or, at *250least, did not object to it, until Clark had erected his mill, dug the race, and built the dam, at an expense of some two thousand dollars. Jacox should have objected before. He should not have permitted Clark, without so much as informing him of his error, or objecting to the course he was taking, to go on, and expend so much money, contrary to the agreement between them, if he intended to seek redress in this Court, by injunction, to prevent a diversion of the water, instead of bringing an action at law, for damages. His silence must, under the circumstances, be construed into a waiver of his right to such relief in equity. He was frequently present, while the work was going on, and never made any objection to it. Defendant did not know he was dissatisfied, until the service of the subpoena.
¶3Injunction dissolved.