Cowdrey v. Colburn

Hoar, J. The ruling of the judge before whom the cause was tried was right, and the action was maintained, if the construction of the deeds of May 4, 1824, and of November 23, 1833, for which the plaintiff contends, is the true one. And [12] though the expressions used are somewhat obscure and confused, we are all of opinion that the intention of the parties can be ascertained, and that their meaning expressed in the language of the deeds was rightly interpreted at the trial. It is conceded that the plaintiff owns all the land and water power in question which has not been conveyed to the defendant under and by virtue of those deeds. The deed of 1824 first conveys a piece of land by metes and bounds, including a part of the dam. It then grants the right and privilege to make and forever maintain a flume through the dam, and to draw water from the pond sufficient for the work of a wheelwright, “ provided, however, that said flume shall always be so constructed that the water therein shall not exceed one foot in depth when the pond is full, and also that” the grantee, “ his heirs and assigns, shall never draw any water from said pond when no water runs over said dam.” It is argued for the defendant that the grant of the land which includes a part of the dam is absolute, and therefore gives the right to take down the dam, or draw water through it to any extent, within that part; and that the subsequent grant of the right to make a flume is in addition to what was before described, and was intended as a further easement in the rest of the dam, with the limitations contained in the proviso. But this appears to be an unnatural and forced construction, and inconsistent with the condition of things existing, as well as with the apparent object of the conveyance. The grantee owned no land below the dam, into which water would be discharged by a flume constructed in any other part of it than the five feet included in the land first conveyed. The restriction upon taking water from the pond is general, and applicable to one part of the dam as much as to another. Indeed, it would be of little importance or value to the grantors, if the right to remove five feet of the dam, or to draw water without restriction through so much of it, had been already, according to the understanding of the parties, granted without qualification. The whole difficulty of construction would perhaps have been obviated by a mere change in punctuation, if the scrivener who drew the deed had used a [13] semicolon instead of a period at the end of the description of the boundaries of the land conveyed. But being of opinion that the final proviso, restricting the drawing of water from the pond, was intended to constitute a restriction upon the use of the water through any part of the dam, and was inserted for the benefit of the grantors and all who might afterward take title under them, the case falls within the authority of Sprague v. Snow, 4 Pick. 54, and indeed is a stronger case than that. The right reserved by the grantors is in the nature of a perpetual easement in the part of the dam granted, giving the grantee a limited use of the water by means of the flume, the right to all the rest being retained by the grantors. Bowen v. Conner, 6 Cush. 132. The deed of November 23d 1833 is of a larger piece of land, including in its general boundaries the piece of land described in the deed of 1824, but excepting that piece from the conveyance as a piece which had been conveyed before “ for a water privilege which is not conveyed or sold in this deed.” We think that the true construction of this conveyance excepts the privilege secured to the grantors by the deed of 1824, as well as whatever else was described in it. The other agreements and deeds set forth in the bill of exceptions, whatever may have been their legal effect upon the rights or remedies of the parties to this action, which it becomes unnecessary to consider, show at least that the construction which we have given to the deeds of 1824 and 1833 is that which has been practically adopted and acted upon from the time of their execution until a very recent period. Exceptions overruled.