Berry v. Billings

Hathaway, J. The respondents allege that they have the right to maintain their dam, and flow the complainant’s land, without compensation for damages. They derive their title, by mesne conveyances, from John Chandler, through Isaac Dexter and others, to whom Chandler conveyed, by deed of April 23, A. D. 1832. While Chandler owned the mills, and the complainant owned a part of lot No. 152, Chandler maintained a mill-dam where the respondents now maintain one, and overflowed the complainant’s land, and settled with him September 29th, 1821, and paid him “ full satisfaction for all past flowage on said land, by said John Chandler’s mill-dam,” as expressed in the complainant’s deed of that date, by which he sold “ and conveyed to the said J ohn Chandler full right and lawful authority to flow all the land on eighty acres of land, on lot numbered one hundred and fifty-two, in Winthrop aforesaid, being all of eighty acres, off of the east end of said lot, excepting thirty acres set -off to the widow Elizabeth Hazeltino, as her thirds in the estate of Joseph Hazeltine. To have and to hold the same, with full right to flow, to him, the said J ohn Chandler, his heirs and assigns, forever, provided that he, the said Chandler, shall not flow higher than his present mill-dam will now flow.” By this deed Chandler acquired a right to flow the complainant’s land. The complainant insists, in argument, that as there were no words of inheritance in the premises of his deed to Chandler, the words, “ heirs and assigns,” in the habendum, are void and of no1 effect, and that Chandler took only the right to flow during his life. The technical meaning of the word premises, in a deed of conveyance, is everything which precedes the habendum. The office of the habendum is to name the grantee, and to limit the certainty of the estate. If the premises in a deed are merely descriptive, and no particular estate be mentioned, then the habendum becomes efficient to declare the intention. By legal construction, a deed of land to have and to hold, to B. and his heirs, is good, although the grantee is not [424] named in tbe premises. Inst., 6 and 7, 298, 299; Hargrave’s note, 33; Sumner v. Williams, 8 Mass. R., 174; 4 Kent’s Com., 468. In the complainant’s deed to Chandler the habendum is not repugnant to the premises, and it is therefore good and effectual. Yin. Abr., tit. Grant K., s. 1. Hence, when Chandler conveyed his mills, &c., to Isaac Dexter and others, by his deed of April 23, 1832, he owned the right to flow the complainant’s land, by virtue of his deed to him, and to his heirs and assigns forever, subject only to the proviso in the deed concerning the height of the flowing, and that right passed by Chandler’s deed to Dexter and others, as appurtenant to the mills, and thence, by mesne conveyances, to the respondents. The case is not different, in principle, from that of the owner of a mill and dam, and certain lands overflowed by the dam, who sells the mill with all its privileges and appurtenances. In which case the purchaser may continue the dam, with the same head of water, without payment of damages to the owner of the land flowed. 4 Kent’s Com., 467; Hathorn v. Stinson, 1 Fairf. R., 224. Nor does it make any difference that the deed from Nathaniel Dexter does not contain the words privileges and appurtenances; those words were not necessary. 2 Greenl. Cruise, 334, note; Kent v. Waite, 10 Pick. R., 141; Blake v. Clark, 6 Greenl., R. 436; Brown v. Thissell, 6 Cush. R., 257, cited by counsel in argument. On the 29th of September, 1821, when the complainant conveyed to Chandler the right to flow his land, he owned no part of the lot No. 152, except the eighty acres which had been conveyed to him April 25, 1815, by Joseph Hazel-tine and others, by this description, to wit.: “ Beginning at the north-east corner of lot numbered 152, thence a west north-west course between said lots No. 152 and lot No. 153, one half mile and ten rods, thence southerly seventy-six rods, thence keeping the said width of seventy-six rods back to the east end of said lot, thence northerly to the first mentioned bounds, it being eighty acres more or less. That [425] part of tbe said premises which is set off as the widow’s dower is hereby reserved in this deed.” The complainant did not acquire title to the residue of lot No. 152, until by deed from Amasa Dexter, of April 27,1886; the eighty acres conveyed to him by Hazeltine and others were conveyed by metes and boundaries; and their location is certain and unquestioned. His deed to Chandler conveyed the right to flow all of eighty acres off of the full width of the east end of said lot, excepting thirty acres set off to the widow Elizabeth Hazeltine as her thirds. The ambiguity, if there- be any, in the description of the land in the complainant’s deed to Chandler, arises from the improper use therein of the words, “ east end of said lot.” There is no east end of the lot. The course of the line which is marked on the plan as its east line, is south, southwest, ijmd that of the line marked as the north line is west, north-west. There is no reasonable doubt that the description in the deed from Hazeltine and others, to the complainant, and in that from him to Chandler, were of the same lot. In both deeds the description is of eighty acres, excepting the widow’s dower — a part of lot No. 152, three of the exterior boundary lines of which are also boundary lines of the lot described, and the complainant had a deed covering eighty acres, and no more, and his deed was recorded. We do not consider the question, whether or not Berry’s dee d to Chandler would estop him from claiming damages for flowing that part of lot No. 152 to which he has subsequently acquired title, because we are satisfied that he did not convey, or attempt to convey, any interest in the land: which he did not then own. The respondents have the right to flow the eighty acres of land, more or less, except the widow’s dower, which was conveyed to the complainant by Joseph Hazelton and others, by deed of April 25, 1815, subject to the proviso in the deed of Berry to Chandler, concerning the height of the dam and flowing; and they have no right to flow any other part of said lot No. 152, except according to the statutory proceed [426] ings, and as agreed by the parties, the respondents must ■be defaulted, and commissioners appointed to assess the damages. May, J., having been counsel in this case, did not sit at the hearing.