Featherston Mining Co. v. Young

Lamar, J. (after stating the foregoing facts.) Under the Civil Code, § 3083, the words “ heirs,” “ assigns,” " successors,” are not necessary in order to convey the fee or to make the estate created by the instrument transmissible to subsequent purchasers. The Wray Mining Company did not own the fee, but only a leasehold estate in the Duke’s hill mine; but that fact did not necessarily make the water privilege an easement in gross, and personal to the Wray [566] Alining Company. The water privilege was appropriate and useful to the estate of the grantee; and as there is nothing to show an intention to create a mere personal right, the easement should be held appurtenant to the mine. Stovall v. Coggins Co., 116 Ga. 376, 380, is directly in point. There a right of way was held appurtenant to a quarry in which the grantee of the easement had no estate beyond that arising from a conveyance of all rock on a certain tract of land. But, whether construed in the light of the testimony or according to the terms of the instrument itself, the water privilege ceased whenever the mine on Duke’s hill was abandoned. The paper is explicit that the washer should be located on the south side of Duke’s hill, and that the privilege was “ to continue as long as the said company shall mine iron ore. and use water from said location.” Even if the paper be treated as ambiguous, under the Civil Code, § 3675,par. 5, words may be supplied or words and sentences can be transposed, and it is evident that the draftsman meant to say that the privilege should continue as long as the company should mine iron ore from said location and use water- thereat. When such operations ceased there, the company was to move the pump and vacate Young’s premises. The claim that Young had without objection seen petitioner expend large sums of money on the faith of its claim of right to use the water was denied by the defendant, and we can not interfere with the finding of the judge thereon, and his ruling “that there was nothing in the question of estoppel.” Judgment affirmed. By five Justices.