But it was said to be a question of fact whether the description in the warrant designated the place to be searched with reasonable certainty, and that "a question of fact is not ordinarily determined at the law term, however strong or conclusive upon one side or the other the evidence recited in the case may seem to be, and though all the evidence relating to it is reported. Jones v. Aqueduct, 62 N.H. 488. There the reserved case contained an express finding (omitted as immaterial in the reported case) that `herein are stated all the facts and circumstances claimed by either party to have any bearing upon the question whether the use made by the defendants of their land and water is or is not a reasonable use.'"

In such cases, each proprietor is entitled to use the stream in such reasonable manner, according to the usages and wants of the community, as will not be inconsistent with a like use by other proprietors above and below him. Cary v. Daniels, 8 Met. 466. Thurber v. Martin, 2 Gray, 394. Gould v. Boston Duck Co. 13 Gray, 442. Many of the decisions relied upon by the defendant are instances of the application of this rule. Pitts v. Lancaster Mills, 13 Met. 156. Springfield v. Harris, 4 Allen, 494. Jones v. Portsmouth Aqueduct, 62 N.H. 488. Snow v. Parsons, 28 Vt. 459. O'Riley v. McChesney, 49 N.Y. 672. Cases in which the proprietors of sawmills have been allowed to throw sawdust and similar refuse into the streams, frequently for the reason that the mills practically could not be run unless this was allowed to a reasonable extent, generally have been put upon the same ground. Haskins v. Haskins, 9 Gray, 390. Hayes v. Waldron, 44 N.H. 580. Jacobs v. Allard, 42 Vt. 303. Canfield v. Andrew, 54 Vt. 1. Prentice v. Geiger, 74 N.Y. 341. But permission to do this has been refused where it was found to make the water impure and unfit for drinking and domestic purposes; Lewis v. Stein, 16 Ala. 214; and the tendency of the later decisions is to restrict somewhat the liberality of the original rule.

Page v. Page, 8 N.H. 187; Hopkinson v. Dumas, 42 N.H. 296; Pearl v. Whitehouse, 52 N.H. 254; Hall v. Congdon, 56 N.H. 279; Ferrin v. Errol, 59 N.H. 234. While these facts might perhaps be reasonably inferred from those reported, they are not specifically found. It is not the province of this court to determine a question of fact, however strong or conclusive upon the one side or the other the evidence recited in the case may seem to be, and though all the evidence is reported. Jones v. Aqueduct, 62 N.H. 488; Metcalf v. Weed, 66 N.H. 176; Martin v. Livingston, 68 N.H. 562; Friel v. Plumer, 69 N.H. 498; Champollion v. Corbin, 71 N.H. 78. The reserved case in Jones v. Aqueduct expressly stated that it contained a statement of "all the facts and circumstances claimed by either party to have any bearing upon the question whether the use made by the defendants of their land and of the water is or is not a reasonable use" ( 66 N.H. 178); and yet the court held that the question of reasonable use was a question of fact and must be determined at the trial term. It is doubtful if the report in the present case is as comprehensive of the testimony and circumstances bearing upon the question of a resulting trust as was that before the court in Jones v. Aqueduct bearing upon the question there considered; but assuming that it is, the findings as to the facts necessary to constitute such a trust should be made at the trial term.

Neither is a mixed question of law and fact ordinarily determined in this court. Jones v. Company, 62 N.H. 488, 490. Case discharged.

In respect to the title to real estate, if the party claiming the estoppel is acquainted with the true state of the title, or has an equal means with the other party of ascertaining it, as in the case of a duly recorded deed, there will be no estoppel, at least from mere silence. Odlin v. Gore, 41 N.H. 465, 477; Wood v. Griffin, 46 N.H. 230, 237; Allen v. Shaw, supra; Jones v. Aqueduct, 62 N.H. 488; Brant v. Iron Co., 93 U.S. 326, 337. The plaintiff claims that the defendant is estopped to assert title to the premises, because after he acquired the title he remained silent while the plaintiff made some permanent improvements.

In such a case, "the court will not assume to pronounce upon the weight of evidence." Pray v. Burbank, 11 N.H. 290; Howard v. Farr, 18 N.H. 457, 459; Whitcher v. Dexter, 61 N.H. 91, 92; Jones v. Aqueduct, 62 N.H. 488. Whether the defendant assumed a personal liability, as claimed by the plaintiff, and whether the circumstances attending the transaction were such as should have put the plaintiff on inquiry, as contended by the defendant, are questions of fact which must be settled at the trial term.

Whatever may be the law in other jurisdictions, it must be regarded as settled in this state that the test is the reasonableness or unreasonableness of the business in question under all the circumstances. The owner may put his land or other property to any use not unlawful which, in view of his own interest and that of all persons affected by it, is a reasonable use. For the consequence to others of such a use, he is not responsible. The question of reasonableness is a question of fact. Bassett v. Company, 43 N.H. 569; Hayes v. Waldron, 44 N.H. 580; Swett v. Cutts, 50 N.H. 439; Eaton v. Railroad, 51 N.H. 504, 530-533; Brown v. Collins, 53 N.H. 442, 446-448; Holden v. Lake Co., 53 N.H. 552; Thompson v. Company, 54 N.H. 545, 556, 559; Garland v. Towne, 55 N.H. 55, 59; Green v. Gilbert, 60 N.H. 144; Jones v. Aqueduct, 62 N.H. 488; Rindge v. Sargent 64 N.H. 294; Graves v. Shattuck, 35 N.H. 257, 265-268; McIntire v. Plaisted, 57 N.H. 606; Lumber Co. v. Company, 65 N.H. 290, 390-392; Davis v. Whitney, ante, p. 66. It is found that the use made by the defendants of their land is not unreasonable to the plaintiff, — that is to say, it is not unreasonable so far as by it she is affected.

In virtue of this ownership, Winn's right to divert the water for use to a reasonable extent was incident to the land; and, as the plaintiff has failed to show any actual damage, it is only for an unreasonable and unauthorized diversion that the law will imply damage to him, because each riparian proprietor having the right to a just and reasonable use of the water as it passes through and along his land, it is only when he transcends his right by an unreasonable and unauthorized use of it that an action will lie against him by another proprietor whose common and equal right to the flow and enjoyment of the water is thereby injuriously affected. And as the reasonableness of the use is, to a considerable extent, a question of degree, and largely dependent on the circumstances of each case, it is to be judged of by the jury, and must be determined at the trial term as a mixed question of law and fact. Jones v. Aqueduct, 62 N.H. 488, 490; Rindge v. Sargent, 64 N.H. 294, 295. This question having been found adversely to the plaintiff by the trial court, the finding is conclusive against him (Jones v. Aqueduct, supra), and consequently the only question now open to him is as to the right of Winn, in his character as a riparian proprietor, to sell the non-riparian defendants any of the water belonging to him as incident to his land. The English rule is understood to be, that "A riparian owner cannot, except as against himself, confer on one who is not a riparian owner any right to use the water of the stream, and any user by a non-riparian proprietor, even under a grant from a riparian owner, is wrongful."

Horne v. Rochester, 62 N.H. 347, 350, Carr v. Ashland, 62 N.H. 665; Robin v. Bartlett, 64 N.H. 426. A question of fact is not ordinarily determined at the law term, however strong or conclusive upon one side or the other the evidence recited in the case may seem to be, and though all the evidence relating to it is reported. Jones v. Aqueduct Co., 62 N.H. 488. There the reserved case contained an express finding (omitted as immaterial in the reported case) that "herein are stated all the facts and circumstances claimed by either party to have any bearing upon the question whether the use made by the defendants of their land and of the water is or is not a reasonable use." Evidence tending to show that Parker Metcalf was the reputed occupant of the premises was competent.

‘The contention on the part of the railroad company is that the language in this respect is merely directory, and that the order will not fail because the direction was not obeyed. The question thus raised must be settled by an application of the doctrine established by this court in Jones v. Proprietors, etc., 36 N.J.L. 206 , the judgment in which case was affirmed by the court of errors for the reasons given in the opinion in this court. Jones v. Morristown Aqueduct Co., 37 N.J.L. 556 . * * *