Dow v. Edges

Allen, J. The plaintiffs and the defendant Edes are entitled each to an equal quantity of water. The rights of each owner of an undivided thing extend over the whole and every part of it. 2 Bouv. Law Die. 621. An “undivided half” of a thing involves the idea of another half in common; and the owners of each, in the absence of express limitation, must have equal rights and privileges in the whole, and each owner will be equally affected by any change in the thing undivided. When Durkee granted the half of a sufficiency of water to operate a grist-mill with two run of stones, and a saw-mill with a head of twenty feet, which Edes now enjoys, he retained an equal quantity, and after-wards conveyed the same, which the plaintiffs now enjoy. So, too, by a fair construction of the deeds, the plaintiffs and Edes are entitled to an equal share in the surplus of water, after satisfying the rights of the other defendants. Eor the deed under which Edes claims title conveys an “ undivided half of all the remaining rights and privileges appertaining to said dam, canal, and water-privilege, and all the right of using said proportion of all the surplusage of water,” and the other half of these remaining rights and privileges and of the surplusage, not then conveyed, passed afterwards in the mortgage of Durkee, under which the plaintiffs claim, by the grant of “ all my rights and privileges connected with said dam and canal.” The same rights and privileges also passed by Durkee’s mortgage, as incident to the grant of the factory to which the canal ran, for Durkee was then in the occupation and enjoyment of the rights not before conveyed. Dunklee v. Wilton Railroad, 24 N. H. 489, and cases cited. The grant, in the deed under which Scribner has title, of water “ for the benefit of the clothing works only,” is not a conditional limitation by which the grant is forfeited whenever the water is applied to a different purpose. Conditions subsequent are not favored in law, and can only be created by clear and unmistakable terms. 2 Bl. Com. 155; 4 Kent Com. 134; 2 Wash. R. P. 6; Chapin v. School District, 35 N. H. 450; Emerson v. Simpson, 43 N. H. 477. The phrase, in the deed by which the water is granted, contains none of the words commonly used to create an estate upon condition, nor is there any clause providing for a reentry by the grantor, or a forfeiture for condition broken. The words of the grant may be construed to mean sufficient water only, for the benefit of the clothing *196 works. Besides, neither the defendant Edes, nor any other party in this proceeding, can take advantage of the forfeiture if one has been wrought. Only the grantor and his heirs can resume the estate for condition broken. 4 Kent Com. 127 ; 2 Wash. R. P. 5; Dewey v. Williams, 40 N. H. 222. The exception of the defendant Scribner is sustained. The other exceptions are overruled, and the shares of the parties in the water, including Scribner’s share, are to be set out to them as determined, and in the order indicated by the court at the trial term. Stanley, J., did not sit.