Bartlett v. Peaslee

G-ilchrist, J. On the 13th day of September, 1822, Jacob Peaslee, deceased, conveyed to the plaintiff certain lands, in the description of which a certain corn-mill was named in the deed, and after the description the following clause is added: “ Also, a privilege for the said Jonathan Bartlett to grind all his own corn in the above mentioned corn-mill.” The deceased owned the mill at the date of the deed, and the defendant holds it under a title acquired from the deceased since the execution of the deed. The plaintiff enjoyed his right to grind at the mill till the year 1841. Since that time the mill has not been in a fit condition for use, and was taken down by the defendant in 1845, without the plaintiff’s consent. The plaintiff has brought case against the defendant, alleging that on the 1st day of Januai’y, 1843, and since, the defendant was bound to keep the mill in good and sufficient repair for grinding corn, but neglected to do so ; by reason of which the plaintiff lost the benefit of his privilege to grind his corn. The court instructed the jury that if the mill, when it was taken down by the defendant, was ruinous through [549] his neglect to make ordinary and proper repairs, he was liable for the damage suffered by the plaintiff in the loss of his right during the period mentioned in the declaration. The grant to the plaintiff was of a right to grind at the mill. The grantor had no right, therefore, to destroy the mill. He could not, nor could the defendant, claiming under him, do any thing that would obstruct the plaintiff in the enjoyment of the right or servitude thus created upon the soil. For any act of that nature, or attended with such necessary consequences, an action on the case would lie at the suit of the party disturbed. But he who has granted an easement upon his own land is not bound to do more than to abstain from acts inconsistent with its proper enjoyment, unless there is a covenant, either by express terms, or by implication from the language of the grant. If I grant a right to take water from a spring upon my land, I am not at liberty to disturb or pollute the water, but I am not bound to keep it clear and in a condition most convenient for the grantee to use it. So, if I grant a way, I cannot obstruct it, but am not bound to keep it in repair. So the grant of a water-course implies a covenant by the grantor not to disturb the grantee in the enjoyment of it. Co. Lit. 884, a, n (1.); Vandercarr v. Vandercarr, 11 Johns. 122 ; 4 Kent 473. It does not appear that the plaintiff has not enjoyed his grant to the full extent in which it was made to him. The right to grind corn in a mill is in its nature determinable with the existence of the mill itself. It is like a right to enter upon the soil for a purpose not requiring its exercise after a limited time. The grantor is not bound to preserve the mill in order that the grantee may have the utmost benefit from his grant. Even supposing such a duty to rest upon the grantor, by reason of a covenant implied or expressed, many questions might be presented before it could be determined [550] that the present action might he maintained. One would relate to the form of the remedy; another would be whether the covenant ran with the land. The verdict must be set aside, and a • New trial granted.