The opinion of the court was delivered, by
Lowrie, C. J.
The plaintiff sues for the flooding of his land by means of a dam rebuilt by the defendant in 1850, and, as the plaintiff alleges, raised higher than the old one was. The defendant, to maintain his right to increase the height of his dam, relies on an old agreement between the former owners of the plaintiff’s and defendant’s tracts, dated in 1773, and the principal questions in the cause grew out of the admission in evidence and interpretation of this old document.
Of course we cannot expect to obtain direct oral proof of the genuineness of such a paper, and therefore' we must accept traditional evidence of it unless it has been so perpetuated by legal record as to dispense with all other evidence. Even the traditionary evidence cannot be expected to relate directly to its execution, but must generally be concerning such collateral and incidental facts as require the presumption of the execution in order that we may reasonably account for them. Hence the ordinary rule of evidence for such ancient documents is that they must have the appearance of due antiquity and of genuineness ; that they must be procured from the proper custody, -and that they must be corroborated by such acts of the parties claiming under them as correspond with their tenor, and need their provisions to account for them.
No doubt this paper may have sufficient appearance of antiquity ; but has it also the appearance of genuineness ? It was recorded in 1803, and the recorder added a note to the record that the paper was not the original, but only a copy, and endorsed the same on the paper, and thus it stood when it was given in evidence. This state of the paper and of its record must have been known to the plaintiff and his predecessors in the title of the mill property, and considering that they had a right to demand its record without note or comment by the recorder, if he was satisfied of the genuineness of the cqrtificate of acknowledgment, and yet accepted the record with thé above-mentioned note of the recorder, who seems to have known the handwriting of some of the persons named, we know not how we can say that the paper appeared to be genuine. And if the whole paper with its signature appears, as was said at the argument, to be one handwriting, and the signature of a witness who was not German appears to be written in a German style of penmanship, the appearance of its want of genuineness would be increased. Not having the .paper before us now, we pass this [275]*275reason without applying it; but for the first reason above assigned, it seems to us that the paper ought not to .have been admitted as evidence of a grant made in 1773.
Nor does it seem to us that the paper, as understood now by the defendant, is corroborated by any acts of the parties corresponding to the claim now made under it. We exclude the act now complained of, which is comparatively recent, for it cannot confirm or corroborate its own right. No doubt we need to find or presume a grant to account for the flooding that existed up to 1850; and the fact of this flooding would be corroborative of any grant which appeared to be genuine, and which would apply to such flooding. The a.ctual flooding of the first seventy-five years cannot possibly corroborate a claim for further flooding since that time. If this agreement means that the defendant may inorease the height ,pf his dam beyond what it stood at for seventy-five years, then and thus far it has no corroborative acts in support of its genuineness.
Put the paper or its original may possibly be admitted on further evidence on the next trial, and therefore we must consider what may be its true value or interpretation. In the court below it was treated as a present grant of an easement to flood three acres of the land now belonging to the plaintiff, beyond what would be flooded by a three feet dam. Is this right? Is it a present executed grant at all; or only a contract to sell not exceeding three acres of land if it should be wanted for a millpond ? Let us abridge the language of the agréement so that we may get its thought clearly.
The grantor binds himself and his heirs to the grantee and his heirs that he will allow the grantee to build a dam three feet high at a place where a specified bridge formerly stood, and if the grantee desires he may build above three feet high till it overflows three acres of the bottom, but no more; and the grantor will, if the grantee desires it, make a sufficient conveyance of the three acres or less of land which shall be so overflowed, and the grantee shall pay 51. per acre for all the land that shall be overflowed by raising the dam above three feet, and shall not make it higher than to overflow three acres. And for the fulfilment of this the parties bind themselves to each other in 100?.
Now it is plain enough that a three feet dam was expected to cause some flooding of the plaintiff’s land, and that for some reason no charge is made for this ; but that the grantee was to pay for all land that should be flooded by making the dam higher than three feet. We see nothing, however, that convinces us that the grantee was to be allowed to flood three acres beyond the'effect of a three feet dam. And the interpretation of the parties for three quarters of a century, and the twice declared provision, that no more than three acres should be flooded, do not favour [276]*276the defendant’s interpretation. It is unreasonable in another aspect ; for there is to be a conveyance in fee for only the three acres or less, and according to it, none is provided for relative to the part covered by the three feet dam, and therefore the defendant would have a fee simple in a patch of the plaintiff’s tract, and an easement in a strip lying between that patch and the defendant’s land. Ignorant people may fall into very absurd bargains, but they could hardly invent of purpose one so complicated and absurd as this one would seem to be if we adopt the defendant’s interpretation.
But is this an executed, or only an executory agreement, in and of itself? We cannot avoid the conclusion that it is only executory. Up to the time of its date there was no right to flood the land that now belongs to the plaintiff, and then there was a contract to allow it. It allows, without charge, so much flooding as a three feet dam would cause; but the extent of the grant beyond that is not defined in the agreement. It is to depend on the choice of the grantee, subject to the limit of three acres, and the price is to be fixed accordingly, and a conveyance in fee is contemplated-when the whole extent of it is ascertained. It makes no essential difference that the conveyance was to be made only if the grantee should require it; for still it shows that the parties did not consider the agreement as an executed conveyance. And, merely formal as the concluding penalty sometimes is, it shows the same thing, unless we attribute utter ignorance of language to the parties.
And when was the grantee to choose how much land he would want to flood ? It seems to us that there can be no reasonable answer to this but the following : when he should come within a reasonable time to erect the three feet dam, which they were then contracting about. There is no word in the agreement that alludes to any other time, and therefore we must infer that the parties were thinking of no other. They were contracting for the height that was to be given to the dam which was then in contemplation, and not for any height that might be desired in any undefined future time.
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The opinion of the court was delivered, by
Lowrie, C. J.
The plaintiff sues for the flooding of his land by means of a dam rebuilt by the defendant in 1850, and, as the plaintiff alleges, raised higher than the old one was. The defendant, to maintain his right to increase the height of his dam, relies on an old agreement between the former owners of the plaintiff’s and defendant’s tracts, dated in 1773, and the principal questions in the cause grew out of the admission in evidence and interpretation of this old document.
Of course we cannot expect to obtain direct oral proof of the genuineness of such a paper, and therefore' we must accept traditional evidence of it unless it has been so perpetuated by legal record as to dispense with all other evidence. Even the traditionary evidence cannot be expected to relate directly to its execution, but must generally be concerning such collateral and incidental facts as require the presumption of the execution in order that we may reasonably account for them. Hence the ordinary rule of evidence for such ancient documents is that they must have the appearance of due antiquity and of genuineness ; that they must be procured from the proper custody, -and that they must be corroborated by such acts of the parties claiming under them as correspond with their tenor, and need their provisions to account for them.
No doubt this paper may have sufficient appearance of antiquity ; but has it also the appearance of genuineness ? It was recorded in 1803, and the recorder added a note to the record that the paper was not the original, but only a copy, and endorsed the same on the paper, and thus it stood when it was given in evidence. This state of the paper and of its record must have been known to the plaintiff and his predecessors in the title of the mill property, and considering that they had a right to demand its record without note or comment by the recorder, if he was satisfied of the genuineness of the cqrtificate of acknowledgment, and yet accepted the record with thé above-mentioned note of the recorder, who seems to have known the handwriting of some of the persons named, we know not how we can say that the paper appeared to be genuine. And if the whole paper with its signature appears, as was said at the argument, to be one handwriting, and the signature of a witness who was not German appears to be written in a German style of penmanship, the appearance of its want of genuineness would be increased. Not having the .paper before us now, we pass this [275]*275reason without applying it; but for the first reason above assigned, it seems to us that the paper ought not to .have been admitted as evidence of a grant made in 1773.
Nor does it seem to us that the paper, as understood now by the defendant, is corroborated by any acts of the parties corresponding to the claim now made under it. We exclude the act now complained of, which is comparatively recent, for it cannot confirm or corroborate its own right. No doubt we need to find or presume a grant to account for the flooding that existed up to 1850; and the fact of this flooding would be corroborative of any grant which appeared to be genuine, and which would apply to such flooding. The a.ctual flooding of the first seventy-five years cannot possibly corroborate a claim for further flooding since that time. If this agreement means that the defendant may inorease the height ,pf his dam beyond what it stood at for seventy-five years, then and thus far it has no corroborative acts in support of its genuineness.
Put the paper or its original may possibly be admitted on further evidence on the next trial, and therefore we must consider what may be its true value or interpretation. In the court below it was treated as a present grant of an easement to flood three acres of the land now belonging to the plaintiff, beyond what would be flooded by a three feet dam. Is this right? Is it a present executed grant at all; or only a contract to sell not exceeding three acres of land if it should be wanted for a millpond ? Let us abridge the language of the agréement so that we may get its thought clearly.
The grantor binds himself and his heirs to the grantee and his heirs that he will allow the grantee to build a dam three feet high at a place where a specified bridge formerly stood, and if the grantee desires he may build above three feet high till it overflows three acres of the bottom, but no more; and the grantor will, if the grantee desires it, make a sufficient conveyance of the three acres or less of land which shall be so overflowed, and the grantee shall pay 51. per acre for all the land that shall be overflowed by raising the dam above three feet, and shall not make it higher than to overflow three acres. And for the fulfilment of this the parties bind themselves to each other in 100?.
Now it is plain enough that a three feet dam was expected to cause some flooding of the plaintiff’s land, and that for some reason no charge is made for this ; but that the grantee was to pay for all land that should be flooded by making the dam higher than three feet. We see nothing, however, that convinces us that the grantee was to be allowed to flood three acres beyond the'effect of a three feet dam. And the interpretation of the parties for three quarters of a century, and the twice declared provision, that no more than three acres should be flooded, do not favour [276]*276the defendant’s interpretation. It is unreasonable in another aspect ; for there is to be a conveyance in fee for only the three acres or less, and according to it, none is provided for relative to the part covered by the three feet dam, and therefore the defendant would have a fee simple in a patch of the plaintiff’s tract, and an easement in a strip lying between that patch and the defendant’s land. Ignorant people may fall into very absurd bargains, but they could hardly invent of purpose one so complicated and absurd as this one would seem to be if we adopt the defendant’s interpretation.
But is this an executed, or only an executory agreement, in and of itself? We cannot avoid the conclusion that it is only executory. Up to the time of its date there was no right to flood the land that now belongs to the plaintiff, and then there was a contract to allow it. It allows, without charge, so much flooding as a three feet dam would cause; but the extent of the grant beyond that is not defined in the agreement. It is to depend on the choice of the grantee, subject to the limit of three acres, and the price is to be fixed accordingly, and a conveyance in fee is contemplated-when the whole extent of it is ascertained. It makes no essential difference that the conveyance was to be made only if the grantee should require it; for still it shows that the parties did not consider the agreement as an executed conveyance. And, merely formal as the concluding penalty sometimes is, it shows the same thing, unless we attribute utter ignorance of language to the parties.
And when was the grantee to choose how much land he would want to flood ? It seems to us that there can be no reasonable answer to this but the following : when he should come within a reasonable time to erect the three feet dam, which they were then contracting about. There is no word in the agreement that alludes to any other time, and therefore we must infer that the parties were thinking of no other. They were contracting for the height that was to be given to the dam which was then in contemplation, and not for any height that might be desired in any undefined future time. The price was sot according to the value of land then, and not at what it might be in 1850, possibly fifty fold greater. What was then flooded was to be then bought and paid for : and there was no purchase of any that was to be flooded in an unknown future.
And it is plain that, if the grant be an executed one, it was executed as a conveyance of not over three acres of land, and not of an easement; and then the right would have been barred long before 1850 by the Statute of Limitations, if the plaintiff and his predecessors continued in open and adverse possession of it all the time, as no doubt they did.
And if the language were doubtful, we should incline to treat [277]*277such an agreement as executory, because of its very nature, and because of the inconveniences that would attend the treatment of it as executed. A sale of a piece of land or of an easement on it, at a given price to be paid whenever the grantee, his heirs or assigns, in all future time, may choose to- pay for and claim it, is simply absurd, whether the law would enforce it or not. Whether it grant land or easement, it necessarily stops all improvements and all proper enjoyment of the land, if it be valid and clear. If it be doubtful or unknown, it may come in and sweep away the most costly improvements and most cherished objects; especially if it be an easement, because that as yet is subject to no Statute of Limitations, unless it may be in the form of equitable analogies.
Another evidence, that the parties were thinking only of'a dam that was to be built at that time, or within a reasonable time, is that the place was fixed by the remains of an old bridge that had formerly stood there, and the dam was to be three feet high, measured from the ground at that place as it then was. The monument is evidently quite temporary and changeable; and "who can tell after near ninety years where that old bridge stood, and how much the creek bottom may have filled up at that place? And this is of essential importance if performance of the contract is to be enforced now. But if it was performed by the dam built at or about that time, then the amount of actual flooding since that becomes the best measure of the right.
Even on the defendant’s own theory of interpretation, it is impossible for him to justify his new flooding of-the plaintiff’s land without showing us what was the bottom of the creek at the place of the old bridge, and that his flooding does not exceed three acres beyond the effect of a dam raised three feet above that level. This would seem to be impossible at this late period; and we cannot suppose that the parties were contracting for a choice that was to be made at a distant future.
Besides this, though not of very convincing importance considering the usual want of exact accuracy in all writings, it can. hardly be regarded as entirely unimportant that, in describing the grantee, “his heirs and assigns” is added in all places except where speaking of who may erect the dam and decide upon its height. Then the grantor alone is spoken of. This at least corresponds with, if it does not corroborate the views already expressed. We conclude, therefore, that the agreement/ is an executory contract. In law, therefore, it vested no title in the defendant, and can furnish no legal justification for his new flooding of the plaintiff’s land. And equity cannot regard it as vesting any equitable title, so far as it was not performed within a reasonable time. So far as the agreement was actually performed by the parties about the proper time, by the erection and [278]*278overflow contemplated, equity will treat it as executed and hold the parties to it, and so will the law with us.
Hence the important question of the cause appears to be, did the defendant by his new dam made in 1850 increase the flooding of the plaintiff’s land beyond what was usual, before that time ? If the agreement be proved, it will be taken as having been performed By the parties, and their rights will be measured by the observed extent of the actual performance. If no agreement appear, a grant of an easement to the same extent will be presumed, and the plaintiff will have to show that the defendant has exceeded that.
And it seems to us that if we read the contract according to these views, not only do all its parts harmonize together, but the whole is in perfect ha,rmony with its first performance. Without the agreement the defendant has an easement in all that has been usually flooded; with it he would have a fee sihiple, for the law presumes the consideration to have been paid. He would have under the agreement a fee simple in all that he had flooded, and not apfee simple for the further part of it, and an easement for the intervening strip. Up to 1850 the quantity flooded seems to have been near three acres, though the dam was not built at the place designated. And even if it were much less it must now be taken as showing how far the grantee chose to have his right extend, or as a full performance of the agreement as then understood; .and so also if it were more. The place of the dam was of no importance at all to the grantor, except as a means of ascertaining the portion of the land overflowed which the grantee was to pay for, and that question has long gone by.
We do not discover any other error of which the plaintiff can reasonably complain that it did him any harm.
Judgment reversed, and a new trial awarded.