Wilcoxon v. McGhee

Trumbull, J. This case presents the single question, of” the right of a purchaser of a tract of public land, having upon it,, at the time of the purchase, a mill and dam, which cause the water of a stream running through it to flow back upon other-public lands, to continue the dam so as to overflow such other ■ lands after they have been entered by individuals. It does not appear from the record, that the person entering the land upon which the mill stood, paid anything additional on account of the mill, or for the privilege of flooding other lands;. but he made the entry and received a patent in the usual form.. The manner in which the public lands are disposed of, the character of the parties to the grant, and its subject matter, are all circumstances proper for consideration in arriving at the intention of the parties; and when we look to these circumstan.ces, there can be little difficulty in determining what rights -are acquired by a patentee of public land, especially when it is recollected that grants by the government are construed favorably for the grantor, and pass nothing by implication. , 2 Bl. Com., 347; 5 Cruise’s Digest, Tit. King's grant, §25 et sequeter; United States v. Arredondo, 6 Peters, 738; Charles River Bridge v. Warren Bridge, 11 Peters, 545. Although the general government in its liberality permits a person to enter upon and subsequently to purchase a tract of public land at the minimum price, yet- it could never have been its intentioq in granting this favor, to bestow also upon the settler, the privilege perpetually to inundate and render valueless, other tracts of public land, by damming up a stream running through the one which he might eventually purchase. The purchaser under such circumstances, pays nothing for the privilege of overflowing other lands, it is not a right necessarily or naturally appertaining to the land he purchases, and could never be presumed to have entered into the contemplation ‘ of the government, in making the grant. The subject matter of the grant, is the land, having a fixed .and definite description, and nothing passes as parcel of the .granted premises, but what is included within the boundaries expressed in the patent, or is naturally or necessarily annexed to the land. Grant v. Chase, 17 Mass., 443; Manning v. Smith, 6 Conn., 289. Regularly “nothing can be appendant or appurtenant, unless it agree in nature and quality with the thing whereunto it is appendant or appurtenant.” Bac. Ab., Tit. Grants, I, 4. The right to overflow adjoining lands, is not an appurtenance agreeing in nature or quality with land itself, and though perhaps a ■.convenience, is not absolutely necessary, to the enjoyment of the land; but such an easement more properly appertains to something that has been put upon the land, as in this instance, to the mill. In the case of the conveyance of a mill and its appurtenances, and where the subject matter of the conveyance and principal thing granted is the mill, the right to continue to overflow the lands of the grantor, to the same extent as when the grant was made, would pass with the mill, as necessary to its use and enjoyment; but here, the subject matter of the grant was the land, and the right to overflow adjoining lands belonging to the government, was not an appurtenance annexed to it by any natural or legal necessity. Let the judgment be affirmed. Judgment affirmed.