Jewett v. Ricker

Appleton, C. J. The plaintiff owning the Diehard son farm, a part of which was overflowed by the Dicker dam, on April 13, 1872, conveyed the same to Benjamin Dux’en by deed “ reserving the xdght of flowage as now flowed by Dicker’s dam, and reserving the yeai'ly payments as I have heretofore received them, and excepting the right and title of Henry S. Jewett in said premises, which has this day been pui’chased by said Dux*en.” As the land was flowed at the time of the above conveyance, the reservation of the right of flowage saved the grantor from liability on his covenants against incumbrance, in case Dicker had sxich right. Hill v. Lord, 48 Maine, 83, 95. In Sprague v. Snow, 4 Pick. 54, the grantor, after describing a tract of land conveyed by his deed, but without having mentioned a stream included within the bounds, proceeded thus: “ And it is to be understood, and it is the intention of this deed to convey to the grantee as much of the privilege of water as shall be suffleient for the use of a fulling mill, whenever there is a sufficiency therefor.” It was held this was a reservation of the surplus water. In Richardson v. Palmer, 38 N. H. 212, 213, the plaintiff conveyed land, “reserving to the public the use of [379] the road through said farm ; also reserving to the White Mountain Railroad the roadway for said road, as laid out by the county commissioners; and also reserving to myself the damages appraised for said railroad way by the commissioners and selectmen.” It was there held that the land described passed to the grantee subject to the incumbrance of the public highway and of the White Mountain Railroad, but that the plaintiff retained his claim for unpaid damage awarded for the laying out of the railroad. The evidence sh ows the defendant promised the plaintiff repeatedly to pay for the yearly flowage. The compensation for the flowage was reserved to the plaintiff in her deed to .Duren. The defendant has had the benefit of it, and no satisfactory reason is shown why he should not perform his promise. It is urged that Duren acquired a title to the Richardson farm from Henry S. Jewett, to whom this plaintiff had mortgaged the same. The deed from H. S. Jewett to Duron bears the same date as that from the plaintiff to him. But the title of H. 8. Jewett was by mortgage, and the same was discharged when the conveyance was made from this plaintiff to Duren. It is obvious, therefore, that Duren’s title is from the plaintiff^ and that he holds under her deed and subject to its terms. Jiotion and exceptions overruled. .Dickerson, Daneorth, Virgin, Peters and Libbey, JJ., concurred.