Mixer v. Reed

The opinion of the court was delivered by Redeield, Ch. J. The principal question in this case is, whether the defendant owned the land in which t| right to use the water. John H. King, befo; seems to have owned the land and well. In ffeaAdead. haj^sSrved it by the terms “ two-thirds of the well, on the aborc described premises, in common” with the grantee. This he conveys to defendant, by the terms “ spring or well, situate,” &c. These terms all evidently mean the same thing, so that we can gather very little, properly, from any supposed difference between “ well” and “ well of water.” One might conclude, perhaps, that a well possibly might import land rather more distinctly, than “a well of water;” for we use the expression a “ dry well,” which is probably as much of a solecism as a dry spring. The question, after all, returns, whether a well imports the land in which it is dug and erected. We think it does, as much as stagnum, which is usually rendered pool, which is nothing more than a large spring, or standing water, or-as gurges, which is ordinarily rendered a whirlpool, or a deep spring, or pool, as it is translated in the notes to Coke, Lib. 1, Chap. 1, § 1. And this writer, and all the writers on this subject, regard these words as conveying the land, covered with water. The well included, ex vi termini, not only the orifice which reached down to the water, but the whole opening in the earth, before it was stoned, and the stone, and the stone laid into the wall, [258] and the water therein. And this, we think, must be regarded as the thing intended to be conveyed, and not the water merely, which only imports the right to use the water, and by which term, nothing passes but the easement, or right to take the water. This being so, the defendant would be justified in making any erection not more extensive than the entire wall; and beyond that, he could not probably justify making erections, as his deed covers no more; but to this extent, he is seized in fee, with the right of way to and from, and the right probably to use the adjoining lands to repair the well, when necessary. But probably not to make permanent erections thereon. As the case was not tried upon any such view of the law, it must go back, for a new trial. Judgment reversed, and ease remanded.