Griswold v. Allen

22 Conn. 89

Opinion

Storrs, J.

The oqly question made before us, in the argument of 'this case, is, as to the extent of the subject matter embraced in the covenants of the defendant, contained in the conveyance from him to the plaintiff. Those covenants are exactly co-extensive, in that respect, with the premises or things previously granted -by the deed. By determining, therefore, what was so granted, we shall ascertain what is within the scope and intention of the covenants.

The plaintiff claims, that the defendant, by this conveyance, granted to him not only the piece of land, containing five acres, therein described, and the right to erect and continue a dam across the river above, as far as the defendant’s laud then extended, at the upper end of his adjoining meadow, and to excavate and make a raceway or artificial watercourse from said river, of the dimensions therein stated, to the piece of land so granted, over the said adjoining land of - the defendant, but also, a right to take and appropriate to his use, as much of the water of said river as could be drawn therefrom, by a .raceway of those dimensions ; and that, as he did not acquire, by the deed, a legal right to the use of so great a quantity of water as would flow through such a raceway, he is entitled to main tain this action on the covenants contained in it. The defendant denies that any right or privilege to use the water of said river was intended to be, or was in fact, granted to the plaintiff, and consequently, that any such right was secured to the plaintiff by said covenants. ' The point has not been made between the parties, whether, from the grant of a right to the plaintiff, to erect a dam at the upper end of the defendant’s adjoining land, and to excavate and make a ditch therefrom to the land granted, a license to the plaintiff would be implied, to use the water of the stream, by means of that ditch, to the extent to which the defendant, the grantor, had a right to use it. We are inclined to the opinion, from the cursory examination which we have given to this point, that such a license would be deemed to be given. But it is not important to decide it, because this action is brought, and can be sustained, only on the ground that, by the grant of the defendant, he undertook to convey and transfer to the plaintiff the absolute right to use a certain definite quantity of the water of the river, be it more or less, than the defendant, as a riparian proprietor above, would have a right to use, that is to say, as much water as could be drawn from the river, by a raceway of the particular dimensions specified in the deed; and if the grant is to be considered only as a license to take as much water as the defendant had a right to do, such right would be fully granted to, and vested in the plaintiff, by the deed, and there would obviously, therefore, be no ground for a complaint, that the defendant, by his covenants, had undertaken to assure to the plaintiff a greater right than he was entitled to. But the question here is, whether the deed purported to convey a right to draw from the river the particular and definite quantity which has been mentioned; and we are clearly of opinion that it did not.

The object, in determining the construction of this grant, is, in this, as in all other similar cases, to ascertain the intention of the parties. For this purpose, we look at the terms of the instrument, in connection with the situation of the parties, and the object they had in view. We do not think that, in this case, it is necessary to resort to any of those artificial rules of construction which yire, in cases of doubt, adopted, in order to ascertain the intentions offparties, because we think, that the meaning of the grant in question is too plain to require such aid.

The grant to the plaintiff, by this deed, is of three things. First, of the piece of land therein described; secondly, of the right or privilege of erecting and continuing a dam, at the place and to the extent therein mentioned; and, thirdly, of the right or privilege of cutting, excavating and making a raceway or water-course, of the dimensions and character therein specified, to the said piece of land adjoining it, and from the upper end of such adjoining land, where it borders on the river above, and to make all necessary embankments, walls and troughs to convey as much of the water from said river to said piece of land, as the said Griswold (the plaintiff) shall choose. As to the raceway, the deed grants to the plaintiff only the right to cut, excavate and make it, with the necessary embankments, walls and troughs, over the specified remaining land of the defendant. There is nothing, in its terms, that has the least allusion to the quantity of water which the plaintiff should be entitled to abstract from the stream, nor anything that purports to give him a right to abstract any. The conveyance of the water from the river, by the raceway, is mentioned in connection with its necessary embankments, walls and troughs ; not for the purpose of asserting a right, in the defendant, to take from the stream as much water as would flow in that raceway, or any water whatever, nor of securing to the plaintiff any such right, but only as indicating the object for which the raceway might be wanted.' The phrase, “ to make all necessary embankments, walls and troughs to convey as much of the water from said river,” &c., is tantamount to the expression, “ to make all embankments, &c., which may be necessary for the purpose of conveying as much of the water,” &c. It is, therefore, only a grant of an easement on the defendant’s adjoining land, namely, the right to make a dam and raceway upon it, for a particular purpose. Whether, after it was made, it could be used for that purpose, to the extent to which it was capable, would depend, not on the right of making or having the raceway on the defendant’s land, but on the acquisition, by the plaintiff, of another and different right, namely, that of drawing the water from the river with which such raceway was connected; a right which might or might not belong to, or be acquired from, the defendant. These rights are entirely distinct and independent of each other in their nature, and have no necessary connection, although it may indeed be necessary or. convenient to possess both, in order to make either of th'em beneficial or profitable. A right to make and have a ditch of a particular size, over the land of another person, is obviously quite distinct and different from a right to abstract the water from a stream, to the use of which that or some other person is entitled. Although, then, the grant to the plaintiff, in this instance, of a right to erect the dam, and make the raceway on the land of the defendant, might imply a right in the plaintiff to draw from the river, by means of such raceway, as much water as the defendant himself might use, we do not think that it extends any further; and we are also of opinion that, beyond this, it was the intention of the defendant, to grant, and of the plaintiff to obtain, by the deed in question, the right only of making a passage for so much of the water of the river, as should be acquired by the plaintiff, from those to whom the use of the water belonged, not exceeding the capacity of the raceway described in the deed. We are strongly confirmed in this opinion, by the circumstance, that it appears on the face of the deed, by the southerly and westerly boundaries of the piece of land conveyed to the plaintiff, that the defendant owned only to the center of the river; that the river was then running in its natural course; and that the privilege of constructing the dam was limited to the extent of the defendant’s land. These facts go strongly to show, that no water privilege, beyond that which the defendant then had, was intended to be conveyed by him.

The case of Coe v. Talcott, (5 Day’s R., 88,) on which the plaintiff places much reliance, is plainly distinguishable from the present. In that case, there was a clear intention to .convey to the grantee the right to the use of the precise quantity of one-half of the water of the stream which ran in the brook, on the adjoining land of the grantor, and, in order to enjoy it, to dig a ditch on said land, and thereby turn the one-half of said brook upon the land conveyed. The language of the deed was express to that effect, and no point could, or did, arise upon its construction. After granting the land, the grantor added, “together with a liberty of plowing and digging in the land of said deceased, and thereby turning into said Arnold?s land, one-half of a small brook, which runs across the highway which is at the east end of said land.”

The judgment of the superior court is therefore affirmed.

In this opinion the other judges concurred, except Ells-worth, J., who tried the cause in the court below, and was therefore disqualified.

"Judgment affirmed.