May 4, 1843, the heirs of Hamlin Rand quitclaimed to Robert Rand "the tannery land and buildings thereunto belonging, and the mill privilege connected therewith," on the westerly side of the Ammonoosuc river, in Lisbon, and at the same time Robert quitclaimed to the heirs "the grist-mill with all the land and the privileges thereto belonging" on the easterly side of the river. The plaintiffs are the present owners of the grist-mill and its privileges, and the defendants of the tannery land and its privileges; and the issue between them is as to the priority and extent of their respective rights to the use of the waters of the *Page 547 river. Primarily, therefore, the decision of this issue depends upon the construction of the conveyances between the Rand heirs and Robert Rand; but it being obvious, from the indefiniteness and uncertainty of the descriptive words used in those conveyances that their extent can only be determined by extrinsic facts, it becomes necessary to consider the then existing circumstances and condition of the property and its rightful state, and also to trace the title under which the parties claim.
In 1812 James I. Swan owned the land and the water-power on both sides of the river which is now owned by these parties, and their titles are derived through him. At this time, as was conceded at the argument, there were not, and never had been, any mills on the westerly side; but on the easterly side there were then, and for years had been, three, namely, the saw-mill, grist-mill, and cloth-mill, all of which were run by water taken through a canal from a dam across the river at or near the site of the present dam. On March 16 of that year, Swan conveyed to one Whiting the tract of land on which the saw-mill was located, and, in connection therewith, "all the canal water privilege, and a proportionate right in the main dam across the river, saving, excepting and reserving to myself, heirs and assigns forever, the exclusive right of the grist or corn-mill, with two sets of stones, and to draw water from said canal sufficient to supply the same in preference of any and all other machinery whatever;" and reserving also "to Richard Gookin all the plot and privileges conveyed to him by Ruby Young." The defendants do not claim to be possessed of any of the rights thus acquired by Whiting. Whatever water rights they have must come from what were left in Swan after his conveyance to Whiting. It is therefore necessary to ascertain what water rights Whiting took by the conveyances, and what remained in Swan.
The general maxim of the law is, that the grant of a thing carries with it everything which is necessary to its reasonable enjoyment; and upon this principle there can be no doubt that, subject to the reservations of his deed, Whiting acquired the right to sufficient water to operate his saw-mill if it could be afforded by the canal water-privilege, and that to this extent the water rights remaining in Swan were correspondingly abridged and limited. Indeed, from the very nature of the property conveyed this would have been so even though there had been no mention of water rights or privileges.
But Whiting's rights were not thus limited by the necessities of his mill, or by its capacity. On the contrary, and subject only to the reservations, he took all the canal water-privilege, or, in other words, the entire privilege, and not a part of it. How, then, must this privilege be measured and its extent determined? Considering the natural signification of the expression "all the canal water privilege," in connection with the purpose for which the *Page 548 canal was constructed and used, the capacity of the canal would seem to be the true measure of the privilege; that is to say, the privilege extended to all the water which could be drawn through the canal in connection with the then existing dam. If this be so, the right acquired by Whiting was the right to draw so much of the river as would flow through the canal; and its effect necessarily was to subject the entire river and its bed to the servitude of the canal privilege. Hence the conveyance, in 1822, by Swan's executor to Kelsea of the right to take sufficient water from the dam to operate a trip-hammer, was in legal effect simply a conveyance of so much of the surplus water as might be necessary for that purpose, and which might remain after the canal was supplied. It is true that the terms of the conveyance do not so limit it, and also that its reservations strongly tend to show that the executor supposed the water rights remaining in Swan after the Whiting deed were quite extensive: but these facts can have no weight because the executor could not convey nor Kelsea take any greater rights than those of which Swan died seized; and, moreover, the servitude of the river to the canal then was, and for many years had been, open, visible, and continuous, and consequently Kelsea would take subject to the servitude; for, when confined to cases of conveyances of mills or water-power, there is no difference of opinion or conflict of authority that the property conveyed passes subject to all existing, apparent, and necessary easements and servitudes.
The application of these principles to the partition deeds of May 4, 1843, is patent. Nevertheless it is strenuously urged by the defendants that because the deed to Robert Rand specifies a mill privilege in connection with the other property conveyed, a mill privilege passed to him, or if not, that the grantors and those claiming under them are estopped to deny it. If this were so its importance is not evident, because, "there being nothing in the deed defining or measuring the extent of the privilege, if the grantee took any mill-privilege the call of the deed is answered;" and water-mills being of so many different kinds, and used for so many different purposes, and requiring so different quantities of water, no reason is perceived why the trip-hammer right may not properly enough be regarded as a mill-privilege. But if not, it is quite immaterial, because the deed being one of quitclaim and release only, it neither conveyed the privilege nor any particular estate in it, but only the grantor's rights therein, which were to take sufficient water out of the surplus to carry a trip-hammer or its equivalent; and to this extent an estoppel arises, but no further. "A quitclaim deed only purports to release and quitclaim whatever interest the grantor possesses at the time. He does not thereby affirm the possession of any title, and he is not precluded from subsequently acquiring a valid title and attempting to enforce it. If he does not possess any title, none passes; and he may subsequently deny that any passed, without subjecting himself to any *Page 549 imputation of a want of good faith." Field, C. J., in San Francisco v. Lawton, 18 Cal. 475, 476. And, apart from these considerations, if the language of this deed is read, as it properly may be, in the light of the circumstances and condition of the property, its actual rightful state, and the object sought to be accomplished, the conclusion is irresistible that the parties mutually intended simply to change the title and possession of the property conveyed; and there is no applicable rule of legal construction by which the deed may not so operate.
The effect of the partition of 1843 was therefore the same as in the ordinary case of a partition between tenants in common, where each party takes his estate with the rights, privileges, and incidents inherently attached to it. Robert Rand took the water rights attached to the trip-hammer privilege, and no more; and the heirs those attached to the grist-mill privilege, and no more; and as against the plaintiffs the defendants' water rights must be measured by those of Robert Rand, they can rightfully take no more water from the dam than he could take, which was enough of the surplus to carry a trip-hammer or its equivalent. On the other hand, the rights of the plaintiffs are to be measured by those of the heirs, which were, in respect of water, to draw sufficient from the canal to supply the grist- or corn-mill with two sets of stones, "in preference of any and all other machinery whatever." It follows that the defendants have no water rights as against the plaintiffs' mill. The contention of neither party before the referee is sustained, but upon the facts reported by him the plaintiffs are entitled to an assessment of their damages.
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