The opinion of the court was delivered by
Ross, J.
In 1867 and 1868, the plaintiffs and defendants were owners of certain rights in a water power on Castleton river, at Fairhaven. July 30, 1804, Salmon Norton owned the entire water power so far as the rights of these parties are involved. There was then a paper-mill on the south side of the river, and a saw-mill and a grist-mill on the north side, all driven from a common power, created by the same dam. The former Salmon Norton had received as his distributive share, or a part of his distributive share from his father, Josiah Norton’s estate; and the latter, or at least the grist-mill, by a conveyance from James Witherell, dated April 18, 1804. Being thus the owner of the paper-mill and grist-mill, and of the power that drove the same, Salmon Norton, in conveying them, could subject either mill to such limitations in respect to the power conveyed, and to the use of the power, as he saw fit, or make the power conveyed to one servient to that conveyed to the other. It was inherent in him to carve out just such estate and power to either mill as he chose. The plaintiffs and defendants both derive their title from this common source. July 30, 1804, Salmon Norton conveyed the paper-mill with its privileges and appurtenances, with certain reservations in reference to the grist-mill and saw-mill, to Alexander Donahue, and whatever rights the plaintiffs own have come to them through various conveyances from this deed. November 10,1807, Salmon Norton conveyed the grist-mill and ¡uivileges to Joshua Quinton, and the title and rights of the defendants hav.e come to them, through intermediate conveyances, from this latter deed. These mills and water,power were originally the property of Matthew Lyon. He had conveyed the paper-mill to one party, and the [433] other mills to other parties, and the title of Salmon Norton was derived from separate sources originating from Matthew Lyon. The county court held that the respective rights of the plaintiffs and defendants were to be determined by the conveyances from their common grantor, Salmon Norton. In this we think there was no «error. In thus holding, we have no occasion to discuss, at length, the question which lias been urged upon our attention by the defendants’ counsel, whether easements of necessity, as they are sometimes called, are merged and lost when the titles to the dominant estate and to the servient estate unite in a common owner. From a limited examination of the authorities on that subject, we think the better and more generally received doctrine is, that such easements are merged and lost in the common owner, and that on separate conveyances of the estates by the common owner, such easements are not revived, nor treated as having existed, during the time the two estates were in the common owner, but are re-created by the conveyance of the estates separately, and arise from an application of the familiar principle, that whoever grants a thing, impliedly grants whatever may be necessary for the beneficial enjoyment of the thing granted. We fail to find anything in the grants and conveyances from Salmon Norton that calls for the application of any such principle, or the decision of that question. The difficult and determinative question in the case is, not what kind of estates Salmon Norton could have carved out of this property of which he was the sole owner, or how he could have made one estate dominant, and the other servient in the use of the common water power, but what kind of estates he did in fact create, and what rights these parties have to the estates so created.
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The opinion of the court was delivered by
Ross, J.
In 1867 and 1868, the plaintiffs and defendants were owners of certain rights in a water power on Castleton river, at Fairhaven. July 30, 1804, Salmon Norton owned the entire water power so far as the rights of these parties are involved. There was then a paper-mill on the south side of the river, and a saw-mill and a grist-mill on the north side, all driven from a common power, created by the same dam. The former Salmon Norton had received as his distributive share, or a part of his distributive share from his father, Josiah Norton’s estate; and the latter, or at least the grist-mill, by a conveyance from James Witherell, dated April 18, 1804. Being thus the owner of the paper-mill and grist-mill, and of the power that drove the same, Salmon Norton, in conveying them, could subject either mill to such limitations in respect to the power conveyed, and to the use of the power, as he saw fit, or make the power conveyed to one servient to that conveyed to the other. It was inherent in him to carve out just such estate and power to either mill as he chose. The plaintiffs and defendants both derive their title from this common source. July 30, 1804, Salmon Norton conveyed the paper-mill with its privileges and appurtenances, with certain reservations in reference to the grist-mill and saw-mill, to Alexander Donahue, and whatever rights the plaintiffs own have come to them through various conveyances from this deed. November 10,1807, Salmon Norton conveyed the grist-mill and ¡uivileges to Joshua Quinton, and the title and rights of the defendants hav.e come to them, through intermediate conveyances, from this latter deed. These mills and water,power were originally the property of Matthew Lyon. He had conveyed the paper-mill to one party, and the [433] other mills to other parties, and the title of Salmon Norton was derived from separate sources originating from Matthew Lyon. The county court held that the respective rights of the plaintiffs and defendants were to be determined by the conveyances from their common grantor, Salmon Norton. In this we think there was no «error. In thus holding, we have no occasion to discuss, at length, the question which lias been urged upon our attention by the defendants’ counsel, whether easements of necessity, as they are sometimes called, are merged and lost when the titles to the dominant estate and to the servient estate unite in a common owner. From a limited examination of the authorities on that subject, we think the better and more generally received doctrine is, that such easements are merged and lost in the common owner, and that on separate conveyances of the estates by the common owner, such easements are not revived, nor treated as having existed, during the time the two estates were in the common owner, but are re-created by the conveyance of the estates separately, and arise from an application of the familiar principle, that whoever grants a thing, impliedly grants whatever may be necessary for the beneficial enjoyment of the thing granted. We fail to find anything in the grants and conveyances from Salmon Norton that calls for the application of any such principle, or the decision of that question. The difficult and determinative question in the case is, not what kind of estates Salmon Norton could have carved out of this property of which he was the sole owner, or how he could have made one estate dominant, and the other servient in the use of the common water power, but what kind of estates he did in fact create, and what rights these parties have to the estates so created.
In the deed from Salmon Norton to Alexander Donahue, of July 30, 1804, the grantor describes the property conveyed as “ the same that was set to me by the distributors of the estate of my honored father, Josiah Norton,” and then gives the same metes and bounds which are contained in the deed from Matthew Lyon to Josiah Norton, which extend “ to the river, thence up the middle of the stream” &c., so as to embrace the south half of the bed of the stream, and of the dam, and then proceeds: “together [434] with the paper-mill standing on the first mentioned piece, with all the privileges and appurtenances thereunto belonging, with all the rights and privileges on the falls where the paper-mill stands, reserving to myself the grist and saw-mill thereon standing, with all the privileges thereunto belonging.” The county court held, against the request of the defendants, that inasmuch as the deed conveyed the land to the middle of the stream, it conveyed one half of the water of the stream for the uso of the paper-mill, and so much of the other half as was not reserved; and that the reservation of the privileges belonging to the grist-mill and saw-mill,' so far as the amount of water was involved, must be taken from the other half of the water of the stream. In this, we think there was error. The conveyance of the soil over which water flows ordinarily carries with it the right to use the water as an incorporeal hereditament. If the conveyance had been of the paper-mill and land to the middle of the stream and nothing more, and if half of the water in the stream then flowed over the land conveyed, the court would have been warranted in holding that the deed conveyed one half of the water of the stream. But the deed conveys more than this. After describing the land with the paper-mill and privileges and appurtenances, it proceeds, “ with all the rights and privileges on the falls where the paper-mill stands, reserving” &c. It is the evident intention of the grantor on the one hand to convey all the water power at that point on the stream, except what he reserved, and on the other hand, to reserve out of the whole water power enough to answer to the privileges belonging to the grist-mill and saw-mill, whatever those privileges might be, whether half or more than half of the water flowing at any given time in the stream. The privileges belonging to the grist-mill and saw-mill included sufficient water to operate them, as they were then constructed, in low water as well as in high water. There was no evidence in the case, disclosed by the bill of exceptions, which tended to show that in low water, half of the water flowing in the stream, or less, would be sufficient to operate the grist-mill. Hence the county court was.not justified, either from the deed or from the evidence, in holding that the reservation was to be taken out of half of the water of the stream. A reservation is something [435] taken from the whole thing covered by the general term's making the grant, and cuts down and lessens the grant from what it would be except for the reservation. Without the reservation in this deed, the whole water power, at that point on the stream, would have passed to the grantee, and the reservation is so much taken from the whole water power of the stream at that point. The terms of the grant and reservation in this case are very similar to the terms of the grant and reservation in Rood et al. v. Johnson, 26 Vt., 64. In that case the deed conveyed the land to the middle of the stream, and the water power with a reservation. The court held that the reservation was out of the whole water power, and not out of the portion not included within the boundaries in the deed. Of the reservation only the grist-mill and its privileges arc owned by the defendants. When we have determined how much of the water power was reserved for the use of the grist-mill under the word “ privileges,” we shall have found a measure of the rights of the defendants in the water power. No question is made but the reservation included in the term privileges, as regards the water, is a measure of the quantity reserved for operating the grist-mill. We think this measure of the quantity of the water reserved is to be determined as of the date of the deed from Salmon Norton to Donahue, and is such a quantity as was then necessary to operate the grist-mill as it was then constructed, having reference to the depth at which the water was taken from the dam, the wheel or wheels then in use, and the number of runs of stones driven. Adams et al. v. Warner et al., 26 Vt., 395. As regards the quantity, this is the measure of the defendants’ rights in the water power, derived from the reservation in the deed. They would not be allowed to take more than this measure some portions of the day, and excuse themselves by showing that they used improved wheels and machinery, and thereby accomplished the work they could have done with the quantity reserved for 24 hours, in half that time, so that during the day they used no more of the water than they had a right to use in that time if used continuously. A.. steady flow of water yielding a constant power is valuable; for the operator knows what he can rely upon, and can arrange the machinery to be used [436] and the help to be employed accordingly; while an inconstant power, created by an over supply of water one hour and none another, is comparatively, if not entirely, worthless. The operator could never forecast what he could do, or how much help he could use advantageously.
It remains to determine whether the owners of the grist-mill have the right, under the privileges reserved to it, to use this quantity of the water flowing in the stream at all hours of the day, in preference to the owners of the paper-mill right with its privileges. Salmon Norton, in his deed of July 30, 1804, evidently referred to the water power as it had been parceled out by the previous owner, Matthew Lyon, and intended to grant what he had received from his father’s estate, and to reserve what was conveyed to him by the deed from James Witherell. In that deed he expressly states that he conveys “ the same that was set to me by the distributors of the estate of my honored father, Josiah Norton.” His father had never owned the grist-mill and saw-mill. The paper-mill with its privileges his father had acquired by a deed from Matthew Lyon, dated September 25, 1T99, and this was all of the water power that the distributors of his father’s estate could have set out to Salmon Norton. The deed from Lyon and the deed from Salmon Norton contain the same metes and bounds and the same language in regard to privileges and rights on the falls, except in the closing part of each description. The closing part of the description in the deed from Lyon is, “ with all the lights and privileges on the falls where the paper-mill stands, remaining in me, having sold the grist and saw-mill thereon standing, with the privileges thereunto belongingand in the deed from Norton, “ with all the rights and privileges on the falls where the paper-mill stands, reserving to myself the grist and saw-mill thereon standing with all the privileges thereunto belonging.”
It is quite apparent that the grant in the two deeds was intended to be and is identical, and that the reservation in the deed from Norton was intended to bo, and is, identical with what is described in the deed from Lyon as having been already sold. This is consistent with the construction* which Donahue gave to the grant, and Salmon Norton to the reservation. When Donahue conveyed [437] the property granted to him by that deed, after having used it nearly two years, while Norton owned the property reserved, he inserted: “ I do not hereby convey the highway leading through said pi'omisos, nor auy more privilege of water for the use of mills or water works than was conveyed by Matthew Lyon to Josiah Norton by his deed to said Josiah, of the same, bearing date September 25, 1799.” Although this appears as an exception in the deed from Donahue, we think it rather an expression of his idea of what he had received by the grant from Norton. When Salmon Norton conveyed the grist-mill and its privileges to Joshua Quinton, he describes them as the same James Withcrell had received from Rogers and Gilbert, and had conveyed to him. It is true Salmon Norton could not lesscn his grant to Donahue by enlarging the reservation, when he subsequently conveyed it to Quinton, nor does he by the construction we have placed upon the grant and reservation. With this construction the deeds all harmonize. The county court were therefore correct in ruling that whatever water was convoyed to Donahue passed to Sproat and Safford, and thence, except the bark-mill privilege, to the plaintiffs.
The deeds from Rogers to Withcrell and from Gilbert to With-orell, mentioned in the deed from Norton to Quinton, refer to the deeds from Lyon to Dickinson, and from Lyon to Smith and Hoffman. These are deeds conveying the grist and saw-mill with the privileges thereunto belonging, spoken of as having been sold in the deed from Lyon to Josiah Norton. From these deeds, Lyon to Smith and Lyon to Dickinson and Hoffman, it is apparent that the right of the saw-mill to the use of the water is postponed till after the right of the paper-mill is satisfied; and that in low water the grist-mill has precedence to the paper-mill in the right to use the water from twelve o’clock at night to t.velve o’clock at noon, and is postponed in the use of the water to the right of the paper-mill for the other twelve hours of the day. Matthew Lyon in his deed of the paper-mill and privileges to Josiah' Norton represents that he has already parted with the ownership of the grist and saw-mill and privileges. Norton obtains all the deed purports to convey if he takes the paper-mill and privileges with the grist and saw-mill and privileges in other owners. We think he is bound [438] by the representation contained in his deed as to the condition of the property. Hence it is immaterial whether the deed from Lyon to Dickinson, dated September 26, 1799, and the deed from Lyon to Josiah Norton, dated September 25,' 1799, and both acknowledged September 26, before the same magistrate, and attested by the same witnesses, are to be considered cotemporaneous in execution and delivery or otherwise. Judgment of the county court is reversed, and the cause remanded.