Levin v. Houck

Opinion by Henderson, J., This case was heard on bill and answer and the solution of the question involved is to be arrived at by the construction given to the reservation or exception in the deed from the defendant to the plaintiff for the land on which the spring is situated. Prior to that conveyance the defendant had maintained a line of pipe from the spring to the premises where he resided and the substance and essence of the reservation is that the grantor did not part with the water right there existing but on the contrary guarded [386] against its impairment or diminution by the restrictions, limitations and conditions in the deed set forth. There is no express' reservation of the water. The conditions existing on the ground were apparently taken notice of by the grantor and. the grantee and the continuance of the water supply provided for. The grantor retained control over the spring for the purpose of maintaining and improving it and the grantee covenanted that he would not do any act tending to destroy or decrease the supply of the spring or to prevent or hinder the maintenance and improvement thereof. As additional security for the preservation of the water privilege the grantor reserved the right of entry over the land around the spring for a distance of 150 feet in every direction from the spring for the purpose of protecting and improving it and for the further purpose of preventing the cutting of any timber growing thereon or the commission of any act tending to decrease the supply of water furnished by the spring. The situation at the time of the grant was this: The spring on the farm to be conveyed was a source of water supply; this supply was made use of by a pipe two inches in diameter at the spring and for a considerable distance and one and one-fourth inches for the remainder of the distance through the farm. Water was constantly flowing through this pipe for the use of the grantor. In making the conveyance of the farm he withheld as much thereof as insured to him a flow of water from the spring; he did not limit himself as to the quantity to be taken and it cannot be doubted that the understanding of the plaintiff was that the defendant was to have all the water which would flow through the pipe. Whether under the terms of the reservation anything more was withheld we need not now consider, but we have no doubt that the defendant was entitled under the terms of his grant to have as much of the water of the spring flow away from the farm as the pipe then in place would permit. The reference in the reservation to “the premises where he (the grantor) now resides” we regard as descriptive merely of the pipe to [387] which the reservation applies. It did conduct the water to the defendant’s premises before the grant and does still. Whether any other pipe is connected with the spring we are not informed, but the reference to the grantor’s premises as descriptive of the pipe was not inappropriately made. No restriction was imposed as to the quantity of water or the uses to which it was to be applied, and we cannot regard the terms of the grant as controlling or regulating the conduct of the defendant in the use to be made of the water after it reaches his farm. The location of the pipe on the land conveyed is fixed by courses and distances, but this location terminates at the road. Beyond that the grantee did not undertake to regulate the direction in which the pipe should be laid or the uses to which the water should be applied. In Corey v. Edgewood Boro., 18 Pa. Superior Ct. 216, there was a reservation of “the right of way of the railroad now upon said land twenty-eight feet wide with a double track through, over and upon said land as said railroad is now located upon said land,” etc. At the time of the grant the railroad was used for the transportation of coal from certain mines to a trunk line railroad, but at a later time a portion of it only was used and that for the transportation of lumber on cars drawn by horses. The contention was that in view of the purpose for which the railroad was built and used at the time of the grant the implication was that the parties in making the reservation intended that the right of way was only to be used for the transportation of coal from the Hampton Coal Mines and that when coal should cease to be taken from the mines the right of way should revert to the adjoining owner. Under such circumstances the language of the deed was held to be descriptive of the location of the railroad on the grantor’s land and not of the use to be made of it. In like manner in Davis v. Hamilton, 6 Pa. Superior Ct. 562, the grant was “of the free use and privilege of a certain stream of water which now runs through to the property hereinbefore conveyed and the unobstructed right of conveying said water in an [388] open race, or water course to the saw, plaster and feed mill as it is now running,” etc. This was held not to give to the successors in title to the grantor a right of action against the grantee or his successors in title for changing the use to which the water is put, and this is in accordance with the doctrine that a construction of a grant which would restrict the grantee to the specific use for which it is first applied is not favored and will not be adopted unless the language of the grant unmistakably indicates an intention to restrict the use: Cress v. Varney, 17 Pa. 496; 4 Leading Cases on Law of Real Property, 334. The appellant contends that the decision in Woodring v. Hollenbach, 202 Pa. 65, should control this case, but it will be seen on examination of that case that the water reserved was expressly limited to the use of the grist mill. The court held that water for the use of the grist mill clearly meant that the water should be used as the power in operating the mill and that this was a restriction of the use to that particular purpose. There is no room for debate on the proposition that where there is a clear and express restriction of the use to a particular purpose this is a restriction against any other use. But the deed under which the appellant claims contains no designation of the use to which the water shall be applied and we find nothing in the deed from which any inference to that effect can be drawn. The learned judge who heard the case gave it careful consideration in the opinion filed and reached a conclusion which the plaintiff’s title supports. The decree is affirmed.