Provost v. Calder

By the Court, Savage, Ch. J. It was objected on the argument, that as there was, properly speaking, no general issue in covenant, no evidence could be given under the notice subjoined to the plea of non est factum. But this mode of pleading has been long used, and as there is no plea more appropriate, we have permitted it. Unless this plea be considered the general issue for the purpose of attaching to it a notice, the defendant in covenant must always plead specially. This question was raised and discussed, and decided in the case of Demarest v. Willard, (8 Cowen, 206,) though not noticed in the report of that case. The evidence given [522] In this case is sufficient to support the verdict for the plaintiff. To prove the defendant assignee, it is enough to shew either an assignment, or occupancy of the premises, or payment of rent by him. (2 Starkie's Ev. 437.) In this case there was no actual assignment of the lease itself, but there was a conveyance of the title of the original lessee, Bidwell, through Morehouse, to the ground, with the appurtenances. Bidwell owned the land and the mill, and having acquired the water privilege, it passed as appurtenant to the mill. (5 Serg. & Rawle, 107.) The case of Botting v. Martin, (1 Campb. 217,) shewing that a paroi assignment of a lease is void, is not applicable. Evidence that the defendant had acquired the title of Bidwell would undoubtedly be sufficient to constitute him assignee if he wished to prosecute for a breach of covenant by the lessor; and if so, it should also subject him to the duties and obligations resting upon him in that character. Possession alone is sufficient prima facie; and to exonerate himself from his liability as assignee, the defendant should shew that such is not his true character, but that he is under-tenant only. Another issue raised by one of the special pleas is, whether Augustin Provost devised to the plaintiff the demised premises. The will gives to her “ all the privilege retained of the water of the Busic creek, which runs through my patents; that is, what may not have been alienated at the time of my decease.” The will was given in evidence. It was shewn also that the executors assented to the devise, and that the land conveyed by the testator to Knowles was patented to him. In my judgment, the words of the will are broad enough to embrace the rent due on the lease in question. It would have given the property excepted and reserved had it not been leased ; and giving that, it must surely embrace the rents issuing from it. Not that a grant of a reversion would carry the rent, the contrary is asserted in Co. Litt. 47, a., but the estate is given to the plaintiff; that estate is encumbered by a lease, the devisee takes it subject to such incumbrance, and must be entitled to all its benefits. The language of the will is, “ all the privilege retained of the [523] water.” It is not part of the estate, not the reversion, nor the rent, but all the privilege ; that is, the whole estate. This brings me to the consideration of what seem to me the principal points in the case: 1. Whether the defendant is not estopped from denying the plaintiff’s title to the rent, or. rather the right'of Augustin Provost; and 2. If such defence were admissible, whether Augustin Provost had any interest in the subject matter of the lease. If I am correct in the conclusion that the defendant is assignee of the lessee, and that the plaintiff is the devisee of the premises leased, then it follows that the plaintiff represents the lessor and the defendant the lessee, each enjoying the rights and subject to the liabilities of the person represented. It is then the familiar case of lessor and lessee, grantor and grantee ; and no principle is better settled than that the tenant cannot dispute the title of his landlord in an action founded upon the contract between them. For this no authority need be cited. But if it were otherwise, and the question was open, then I will inquire what estate passed to Knowles, and what jvas the effect of the exception and reservation in the deed. It is contended by the defendant’s counsel that the water passed with the land to Knowles ; that water is not severable from the land under the water, and therefore passed with it; that an exception must not be of part of the thing granted, such exception being void. In Sheppard’s Touchstone, 79, 80, (Co. Litt. 47, a.,) it is said that an exception must not be part of the thing granted, but incident to the grant. (See also Dyer, 264, b., 4 Mod. 11, 12.) Thus a man cannot grant an estase and reserve a part of it, as a conveyance in fee, reserving an estate for life ; he cannot grant black acre and white acre, reserving white acre ; but he may grant a messuage with the appurtenances, reserving one of them. So, too, he may grant a tract of land, reserving all mines. But according to the doctrine in Sheppard, if one grant all gold and silver mines, reserving the silver mines, the reservation is void. A grant of a tract of land reserving all mill sites is valid, and the reservation is valid. So if water may be the subject of a grant separate from the land, a reserva [524] tian of the water, it is said, reserves only a piscary. The term ]anc[; jn tpe legal signification, comprehendeth any ground, soil or earth whatsoever: as meadows, pastures, woods, moors, waters, marshes, furzes and heath. (Co. Litt. 4, a.) If a man grant aquam suam, the soil shall not pass, but only a piscary. (Co. Litt. 4, a. 5 Cowen, 219.) It is also a principle well established, that exceptions in a deed are to be construed most favorably to the grantee. (8 Johns. R. 406. 9 East, 15.) These principles being established, the deed in question must be tested by them. The grant to Knowles is of 323 \ acres, C£ excepting and reserving to myself, my heirs and assigns, the sole and only right of the stream of water running through the above demised piece of land; and the party of the second part is not to erect or build any kind of water works whatsoever on said stream or creek, but the same I hereby reserve to myself as aforesaid.” The first question naturally arising is, what is excepted ? Is it a fishery 1 Is it the water simply, or the privilege of using it 1 In cases of doubt, the exception is to be construed most favorably to the grantee ; if the reservation and the covenant of the grantee taken together leave no room for rational doubt of the intent of the parties, then such intent must govern. The grantor reserves the right of the stream of water, and the grantee covenants not to erect any water works on said stream, but the same is reserved to the grantor ; the plain common sense of which is, that the grantor conveys the water as well as the land for every purpose except the right of using water power upon the premises granted, which right he reserves. So the parties understood their agreement; for we find Bidwell making a contract with Provost for the use of the privilege reserved, first by paroi and afterwards by lease. Í There is nothing in the cases cited, inconsistent with the views I have taken of this case, provided I am right in the construction to be given to the deed from Provost to Knowles. The case of Thompson v. Gregory, (4 Johns. R. 81,) shews that such an exception in a deed is good: it is indeed said, I that considered sti'ictly as an exception, it is void for uncen1 tainty; but this must be taken in connection with what pre - [525] cedes it, and then it is merely that until the grantor exercises his right and builds his mills and dams, the exception is inoperative, and the whole premises vest in the grantee, who may maintain trespass against any one, but the grantor or his assignee by deed, who shall attempt to exercise the right reserved to the grantor. The case of Jackson v. Lawrence, (11 Johns. R. 191,) shews that an exception of mill seats means natural sites for mills, and not artificial ones. That is not applicable here ; for the reservation, according to my construction, applies to the possibility of using the water for any kind of machinery ; that question was settled by the parties to the lease. When the lessee took the lease, he acknowledged the title of the lessor ; and the defendant coming in under the lessee is in no better situation. On all the points in the case, therefore, my opinion is in favor of the plaintiff. Judgment for plaintiff.