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Taking into consideration the words of the exception and condition annexed, it appears plain to my mind that the reservation of the creeks, kills, runs and streams of water, was intended by the parties to the conveyance to be absolute and unqualified. There is an obvious distinction between the reservation, as it relates to mines and minerals, and
the creeks, kills, runs and streams of water, and as it relates to the ground and wood, fire-wood and timber. In respect to the two first objects of the reservation, it applies, by its terms, to all of the mines and minerals, and to all of the creeks, kills, runs and streams of water. In regard to the latter two, the language is changed and qualified to so much ground, andall such wood, fire-wood and timber, as should be necessary for mining purposes, and excluding such part of the ground, and so much of the wood, c., as should not be necessary for those purposes.
But conceding that the language is ambiguous, so as to cast a doubt upon the construction, there are extraneous facts in the case which deserve an attentive consideration. The language of the reservation we are considering, is found in the original perpetual lease from Ten Broeck to Bullock, given in 1793, but it is referred to and adopted in the deed from French to Van Auken in 1829, and is therefore to be construed precisely as though it were incorporated into and formed a part of that deed. Now the time when, and the circumstances under which that conveyance was made, are, as it seems to me, of great importance in the construction of the conveyance itself. The same dam now complained of was then in existence, and had existed for a long period. It was then, and had for many years been used to supply a head of water to operate the mills of the grantor a few rods below the premises granted. Those mills would be rendered useless and valueless without a continuance of the same right. No minesor minerals had ever been discovered, nor does it appear that either of the parties believed, or had any reason to believe, that any would ever be discovered, so as to render the reservation, under the construction claimed by the plaintiff below, of the least possible utility. These circumstances were in the view and contemplation of the parties at the time this reservation was incorporated into the deed of 1829, and they demonstrate, to my mind, that the intention was to reserve the waters of the Normanskill, for the same uses to which they were then, and had for a long time been applied. The contrary
supposition involves an absurdity which ought not to be imputed to either of the parties. Upon the construction which I place upon the reservation, the reason and object of it are plain and obvious. Upon the construction claimed by the plaintiff, it seems, to say the least, without any adequate object or aim.
It is a cardinal rule in the construction of contracts, that the intention of the parties is to be enquired into, and if not forbidden by law, is to be effectuated. Too much regard is not to be had to the proper and exact signification of words and sentences, so as to prevent the simple intention of the parties from taking effect. And whenever the language used is susceptible of more than one interpretation, the Courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and of the subject matter of the instrument. To this extent, at least, the well settled rule is, that extraneous evidence is admissible to aid in the construction of written contracts. (Wilson vs. Troup, 2 Cow. 195, 228; Parkhurst vs. Smith, Willes. Rep. 332; Bradley vs.The Washington, Alex. Geo. S.P. Co., 13 Peters 89; Gibsonvs. Tyson, 5 Watts. 34.) Applying this sound and rational principle to the language of the reservation in question, and to the extraneous circumstances just noticed, and it would seem impossible to err in the construction.
Another rule of construction is, that when the words of a grant are ambiguous, the Courts will call in aid the acts done under it, as a clue to the intention of the parties. (Livingston vs.Ten Broeck, 16 Johns. 22; Atty. Genl. vs. Parker, 3 Atk. 576; Atty. Genl. vs. Foster, 10 Ves. Jr. 338; Weld vs.Hornby, 7 East. 199; Rex vs. Osborn, 4 East 327; Doe vs.Ries, 8 Bing. 181 per Tindal, C.J.) Upon this principle we are permitted also to look at the undisturbed use of the right contested, on the one side, and the unqualified acquiescence, on the other, down to the time of the plaintiff's purchase of the premises in 1837; and these circumstances are also justly entitled to weight in the construction of this reservation.
I therefore come to the conclusion that the unqualified right to use the water of the Normanskill for milling purposes upon the premises of the defendant, was reserved in the deed of 1829. And that being so, it followed, that the right to flow so much of the land conveyed by that deed as was necessary for the reasonable and full enjoyment of the reservation, was also reserved. This reservation should be construed in the same way as a grant by the owner of the soil of a like privilege; for the rule is, that what will pass by words in a grant will be excepted by the same words in an exception. (Shephard's Touchstone, 100, 1 Saunders,
326, n. 6; Doud vs. Kingscote, 6 Mees. and Wels. 197;Hinchliffe vs. Kennard, 5 Bing. N.C.) Now if Abel French, Sen., who owned the premises of both parties when the deed of 1829 was executed, had then conveyed the premises of the defendant below with "all the creeks, kills, runs and streams of water," the right to the beneficial enjoyment of the dam, mills and privileges, situated on those premises would have passed by such conveyance, as a necessary incident to the subject matter actually granted, although not specifically named. (Shephard'sTouch. 89, Bac. Abr. Title Grant, 1. 4.; Price vs. Braham,Vaughan's Rep. 109.) Upon this principle if a man having a close to which there is no access except over his other lands, sell that close, the grantee shall have a right of way to it, for without it he cannot derive any benefit from the grant. So if the grantor should reserve that close to himself, and sell his other lands, the law will presume a right of way reserved. (Howton vs.Frecusson, 8 Term Rep. 50; Holmes vs. Goring, 2 Bing. 56;Clark vs. Cogge, Cro. Jac. 170; Jorden vs. Atwood, Owen Rep. 121; Nickols vs. Luce, 24 Pick. 102, 1 Saund. 323, n. 6;Collins vs. Prentice, 15 Conn. R. 39, 3 Kent. Comm. 421, 422, 5th Ed.) The way in the one case is granted by the deed, and in the other case reserved. And although it is called a way of necessity, yet in strictness the necessity does not create the way, but merely furnishes evidence of the intention of the parties.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
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Taking into consideration the words of the exception and condition annexed, it appears plain to my mind that the reservation of the creeks, kills, runs and streams of water, was intended by the parties to the conveyance to be absolute and unqualified. There is an obvious distinction between the reservation, as it relates to mines and minerals, and
the creeks, kills, runs and streams of water, and as it relates to the ground and wood, fire-wood and timber. In respect to the two first objects of the reservation, it applies, by its terms, to all of the mines and minerals, and to all of the creeks, kills, runs and streams of water. In regard to the latter two, the language is changed and qualified to so much ground, andall such wood, fire-wood and timber, as should be necessary for mining purposes, and excluding such part of the ground, and so much of the wood, c., as should not be necessary for those purposes.
But conceding that the language is ambiguous, so as to cast a doubt upon the construction, there are extraneous facts in the case which deserve an attentive consideration. The language of the reservation we are considering, is found in the original perpetual lease from Ten Broeck to Bullock, given in 1793, but it is referred to and adopted in the deed from French to Van Auken in 1829, and is therefore to be construed precisely as though it were incorporated into and formed a part of that deed. Now the time when, and the circumstances under which that conveyance was made, are, as it seems to me, of great importance in the construction of the conveyance itself. The same dam now complained of was then in existence, and had existed for a long period. It was then, and had for many years been used to supply a head of water to operate the mills of the grantor a few rods below the premises granted. Those mills would be rendered useless and valueless without a continuance of the same right. No minesor minerals had ever been discovered, nor does it appear that either of the parties believed, or had any reason to believe, that any would ever be discovered, so as to render the reservation, under the construction claimed by the plaintiff below, of the least possible utility. These circumstances were in the view and contemplation of the parties at the time this reservation was incorporated into the deed of 1829, and they demonstrate, to my mind, that the intention was to reserve the waters of the Normanskill, for the same uses to which they were then, and had for a long time been applied. The contrary
supposition involves an absurdity which ought not to be imputed to either of the parties. Upon the construction which I place upon the reservation, the reason and object of it are plain and obvious. Upon the construction claimed by the plaintiff, it seems, to say the least, without any adequate object or aim.
It is a cardinal rule in the construction of contracts, that the intention of the parties is to be enquired into, and if not forbidden by law, is to be effectuated. Too much regard is not to be had to the proper and exact signification of words and sentences, so as to prevent the simple intention of the parties from taking effect. And whenever the language used is susceptible of more than one interpretation, the Courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and of the subject matter of the instrument. To this extent, at least, the well settled rule is, that extraneous evidence is admissible to aid in the construction of written contracts. (Wilson vs. Troup, 2 Cow. 195, 228; Parkhurst vs. Smith, Willes. Rep. 332; Bradley vs.The Washington, Alex. Geo. S.P. Co., 13 Peters 89; Gibsonvs. Tyson, 5 Watts. 34.) Applying this sound and rational principle to the language of the reservation in question, and to the extraneous circumstances just noticed, and it would seem impossible to err in the construction.
Another rule of construction is, that when the words of a grant are ambiguous, the Courts will call in aid the acts done under it, as a clue to the intention of the parties. (Livingston vs.Ten Broeck, 16 Johns. 22; Atty. Genl. vs. Parker, 3 Atk. 576; Atty. Genl. vs. Foster, 10 Ves. Jr. 338; Weld vs.Hornby, 7 East. 199; Rex vs. Osborn, 4 East 327; Doe vs.Ries, 8 Bing. 181 per Tindal, C.J.) Upon this principle we are permitted also to look at the undisturbed use of the right contested, on the one side, and the unqualified acquiescence, on the other, down to the time of the plaintiff's purchase of the premises in 1837; and these circumstances are also justly entitled to weight in the construction of this reservation.
I therefore come to the conclusion that the unqualified right to use the water of the Normanskill for milling purposes upon the premises of the defendant, was reserved in the deed of 1829. And that being so, it followed, that the right to flow so much of the land conveyed by that deed as was necessary for the reasonable and full enjoyment of the reservation, was also reserved. This reservation should be construed in the same way as a grant by the owner of the soil of a like privilege; for the rule is, that what will pass by words in a grant will be excepted by the same words in an exception. (Shephard's Touchstone, 100, 1 Saunders,
326, n. 6; Doud vs. Kingscote, 6 Mees. and Wels. 197;Hinchliffe vs. Kennard, 5 Bing. N.C.) Now if Abel French, Sen., who owned the premises of both parties when the deed of 1829 was executed, had then conveyed the premises of the defendant below with "all the creeks, kills, runs and streams of water," the right to the beneficial enjoyment of the dam, mills and privileges, situated on those premises would have passed by such conveyance, as a necessary incident to the subject matter actually granted, although not specifically named. (Shephard'sTouch. 89, Bac. Abr. Title Grant, 1. 4.; Price vs. Braham,Vaughan's Rep. 109.) Upon this principle if a man having a close to which there is no access except over his other lands, sell that close, the grantee shall have a right of way to it, for without it he cannot derive any benefit from the grant. So if the grantor should reserve that close to himself, and sell his other lands, the law will presume a right of way reserved. (Howton vs.Frecusson, 8 Term Rep. 50; Holmes vs. Goring, 2 Bing. 56;Clark vs. Cogge, Cro. Jac. 170; Jorden vs. Atwood, Owen Rep. 121; Nickols vs. Luce, 24 Pick. 102, 1 Saund. 323, n. 6;Collins vs. Prentice, 15 Conn. R. 39, 3 Kent. Comm. 421, 422, 5th Ed.) The way in the one case is granted by the deed, and in the other case reserved. And although it is called a way of necessity, yet in strictness the necessity does not create the way, but merely furnishes evidence of the intention of the parties. — For the law will not presume an intent that one of the parties should convey land
to the other in such a manner, that the grantee can derive no benefit from the conveyance, nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. Under such circumstances the law will give effect according to the presumed intent of the parties. The sound and reasonable rule is, that whatever is necessary to the fair enjoyment of the thing granted or excepted, is incidentally granted or excepted. (Liford's Case 11, Coke. 52; Doud vs. Kingscote, 6 Mees.and Wels. 174; Hodgson vs. Field, 7 East. 613.)
In the case before us, French, the grantor in the deed of 1829, when he conveyed the premises overflowed, to Van Auken, the plaintiff's grantor, retained to himself the premises below on the same stream, and he expressly reserved the stream itself, by the phrase "all creeks, kills, runs, and streams of water." On the premises not granted he possessed mills, which would become worthless, if the reservation is to be construed so as to apply only to the stream in its natural course. Under these circumstances I cannot doubt that the phraseology employed by the parties was intended to indicate the stream in the condition it then was, and to reserve it for the uses to which it was then, and had been applied. And in adopting this construction, I do not think we do any violence to the language in which the parties chose to express themselves.
I am of opinion that the judgment of the Supreme Court should be reversed, and a venire de novo issued by that Court.