Dillon v. Burke

63 A. 927, 73 N.H. 539, 1906 N.H. LEXIS 26

• Court: Supreme Court of New Hampshire
• Decided: May 1, 1906
• Status: Published

Opinion

Young, J.

A stone reservoir fifty feet wide, used to store water for extinguishing fires and separated from the adjoining land by an iron fence, possesses none of the characteristics of a brook and is subject to none of the uses that attach to a brook which divides the land of adjoining owners. There was no evidence that Wentworth or his grantee ever used the land not covered by the reservoir in connection with the rest of the lot, or that it was capable of being put to any beneficial use which could not be enjoyed as completely by one who was not, as by one who was the owner of the Wentworth lot, or that the right to control the demanded premises was in any way essential to the full and complete enjoyment of the Wentworth lot. There has been no practical construction of the Wentworth deed; and the reasons which have been assigned for holding that it was more probable than otherwise the parties intended that the boundary line in a conveyance in which the granted premises are bounded by a highway or a stream should be the center thereof, have no application- to the facts of this case. The presumption which ordinarily obtains in the construction of a deed bounding the granted premises by the land of another must prevail, and the Wentworth deed be construed as though it read: bounded on the south by the northerly line of the lot on which the city reservoir stands. Such a construction gives to the language used its ordinary meaning.

Exception sustained.

All concurred.