Garland v. Hodsdon

[514] The opinion of the Court was drawn up by Davis, J. Moses Patten, and certain co-tenants, formerly owned a mill privilege, and lands, on both sides of the Kenduskeag stream, situated in Levant, in the county of Penobscot. In 1829, they owned and carried on a grist-mill and also a saw-mill, on the privilege, both mills being on the east side of the stream. October 27th, 1829, they conveyed to one Simeon Parsons a parcel of land on the west side of the stream, including a part of the dam and mill privilege, with such part of the water power as is embraced in the following clause contained in the deed:— “ Together with the right and privilege in the dam and stream, to take and use water sufficient for one fulling-mill, and the necessary machinery for dressing cloth, and, also, for such carding machines as may be connected with said fulling-mill, not exceeding four single machines, or two double ones. “ Provided, however, that the right and privilege in the dam and stream, for the aforesaid purposes, shall in no case extend so far as to take the water when the same shall be wanted for the grist-mill now erected on or near said dam, or such other grist-mill as may hereafter be erected instead of the present one, on or near said dam; meaning and intending to reserve for the use of said grist-mill, the right at all times to take water sufficient for two runs of stones,” &c. The plaintiff, who claims under the grantors, contends that the reservation in the deed is of a quantity of water equal to what would be necessary for such a grist-mill, and that he may use it for other purposes; and that the grant was for the specific purpose of a fulling-mill and carding machines, and available for no other. The defendants, who derived their title from Parsons, claim the right to use the water for any purpose; and they contend that the reservation to the grantors was for the use of the grist-mill only, and that it cannot be held for any other purpose. The questions are independent, and must be determined separately. [515] Did the grant limit the use to the purposes of a fulling-mill ? Or was the purpose named, in order to fix the volume of water conveyed by the deed ? When the intention of a grantor is clearly expressed in the deed, either way, courts will always give effect to it. Tourtillot v. Phelps, 4 Gray, 370. But, if the intention is left doubtful, the tendency of courts is to. construe such grants most favorably to the grantee. If one conveys only an incorporeal hereditament, a right to use the water for a particular purpose, with no grant of land to which it is appurtenant, the presumption is strong that the right in the water is intended to be restricted to the specific purpose named. But, if the grant of water is appurtenant to a parcel of land, conveyed by the same deed, the beneficial use of the land, under the changes of business which occur from time to time, may require the use of the water for other purposes than those which are specified. And, for this reason, unless the contrary intention is clear, the use designated will be taken by the courts merely as the measure of water granted, which the grantee may use for that, or for other purposes. Applying these principles to the case at bar, we are satisfied that the defendants may use the water for other machinery, the quantity not exceeding what would be required for a fulling-mill and carding machines. The plaintiff, however, contends that the reservation should receive the same construction as the grant; that water enough for a grist-mill is at all times reserved for him, which he may use for that purpose, or for any other. And, if such had been the intention of the grantors, clearly expressed, the right so reserved would be sustained by the Court. But the terms of the reservation are entirely different from those of the grant. It is not a reservation of “ water sufficient for” a grist-mill, but a limitation of the grant “ when the water shall be wanted for the grist-mill.” The restriction to the particular use could hardly be more clearly expressed. Besides, what is here called a “reservation” is, strictly [516] speaking, an “ exception.” It does not apply when there is water enough for both parties. It is a part of the thing granted, deducting so much from it. A reservation is always external to the grant, and may be good or bad, without diminishing it. 7 Petersdorf, 675, 679. An exception, if valid, reduces the grant; if void, the entire grant is good, unaffected by it. 4 Comyn, title Fait. If doubtful, or uncertain, it is void; and the grant shall be held free of it. And, whether valid or void, it is in all cases to be construed most strictly against the grantor. 10 Coke, 106, b. The deed, in this case, contains a grant of water sufficient for a fulling-mill and four single carding machines. The volume of water so granted is subject to be diminished by the exception, when wanted by the grantors for the grist-mill. We do not think the exception so doubtful as to be void. But w.e are of opinion that the grantors, or those claiming under them, have no right, under the exception, to use the water for any purpose except that which is specified. Beyond this, the entire grant must be upheld, according to its terms. Exceptions overruled. Tenney, C. J., and Cutting, May, and Kent, J. J., concurred.