Andrews, J.
It is claimed on behalf of the plaintiff, that the deed of March 26, 1851, from the Faulkners to James W. and Charles Knapp, to whose rights the plaintiff has succeeded, conveyed to the grantees therein, all the surplus water to which the grantors were entitled under the reservation in their deed to the Flew York and Erie Railway Company, of December 20, 1849. This claim presents the main question upon this appeal.
If the Knapps acquired by their deed the whole surplus water, then the judgment in so far as it adjudges that the defendants Pettingill, Griffis, Terwilliger and Wheeler, are entitled to draw water from the pipe of the railway company for the use of their premises respectively, is erroneous, for the reason that they do not claim such right under the Knapp title, but under and through the Faulkners and their grantees, by deeds or license subsequent thereto. If the Knapps did not by their deed acquire the right to the whole surplus water, then the right of the plaintiff to relief against the individual defendants will depend upon the further question, whether the rights actually enjoyed by them, are in conflict with the prior right of the plaintiff under the Knapp title.
The deed of March 26, 1851, conveyed to the Knapps, a hotel property and premises in the village of Chehocton (now Hancock), then owned by the Faulkners, the hotel having been erected on a part of the Faulkner farm (so called), and which at the time was supplied with water through a half-inch pipe, connected with a wooden conduit of the railway company, through which the company drew its supply of water for its depot and water station in Hancock. The deed after describing by metes and bounds the premises conveyed, and as containing nineteen-twentieths of an acre of land, more or less, proceeds as follows: “ and also all the right, title and privilege to, and of all the water now used on said premises, or to which the parties of the first part, or either of them, may be entitled to by use, occupation, reservation, or agreement with the Hew York and Erie Railroad Company, or otherwise, as appurtenant to said premises, together with the appurtenances thereunto belonging, or in any wise appertaining.” The reservation or agreement with the Hew York and Erie Railroad Company referred to in this deed, is contained in the deed from the Faulkners to that company, of December 20, 1849. By that deed the Faulkners conveyed to the company about four acres of land, on which its depot and water tanks were subsequently located, and the description of the land conveyed is followed by these clauses : “ the
party
of the first part also hereby conveys the right to draw water from any springs or streams on their premises, for the purpose of supplying a depot and water station at Chehocton, by means of pipes or other suitable device in a proper manner, with a full right of ingress and egress for the purpose of laying and repairing said pipes, or the device and the tanks connected therewith. The parties of the first part reserving to themselves the right by connection pipes, or other suitable devices, of drawing from the pipes or other device of the party of the second part, so much of the water as shall not be found necessary for supplying said depot and water stations. It being distinctly understood that the surplus water only is reserved; should there be none at any time, then and during such period, it shall be lawful and right for the party
of the second part to shut off the communication of the
party
of the first part from their said pipes, or other device.”
Construing the clause in the deed to the Knapps, relating to the water right and privilege, in the light of the surrounding circumstances, it seems to be very plain that it was not the intention of the Faulkners to convey to the Knapps all the surplus water, reserved in the deed to the New York and Erie Railroad Company, but only so much thereof as was then used on the premises conveyed, and to draw the same through a pipe connecting with the pipe of the company. The reference to the agreement with the New York and Erie Railroad Company, was inserted not by way of enlargement of the right of the grantees given by the prior clause, but as a limitation thereof, or at least such reference was made
ex dbumdanti
cautela, since the company under its deed, in case of an insufficient supply of water, was entitled to cut off all supply to the hotel premises, and the right granted to the Knapps would necessarily be subject to this contingency. It cannot be supposed that the Faulkners intended to deprive themselves of any right in the surplus water, or of the benefit to their remaining property of the surplus which should remain after satisfying the demands of the railroad company, and furnishing to the hotel premises the quantity theretofore used thereon.
This conclusion renders it necessary to consider whether the judgment declaring the rights of the individual defendants before named, is erroneous as to the plaintiff. The plaintiff’s right under the deed of March 26, 1851, as we construe it, is to draw from the conduit of the railroad company, so much of the surplus water for the use of their premises, as will pass through a half-inch pipe. The title of the Knapps to this portion of the surplus water was prior to the right of any of the individual defendants, and whatever rights they or any of them have acquired in the surplus water, are subordinate to the prior right of the plaintiff under the Knapp title, so that in case of a deficiency of water, the plaintiff is entitled to his supply before any of the individual defendants are entitled to draw. The judgment in defining the rights of the defendants is some
what obscure, and should we think, to avoid future controversy, be amended by declaring such priority. The plaintiff has no interest in any other respect in the determination relating to the rights of the individual defendants. They have acquiesced in the judgment by hot appealing therefrom, and we need not consider whether their rights as between themselves have been correctly" adjudged. The deed to the Knapps, as printed in the error book, omits the words
“
may he entitled to ” in the clause relating to the water-right above quoted, but they are inserted in the recital of the description of the deed in the complaint and in the findings (to which no exception is taken), and are manifestly necessary to complete the sense.
The remaining question arises on the plaintiff’s exception to the conclusion of law in the findings of the trial judge, that the plaintiff has no cause of action against the Erie railway or its receiver, for not maintaining the dam erected by the New York and Erie Railroad Company in 1850, and which was carried, away in 1857 and never rebuilt. There was no right to build the dam given by the Faulkners to the company in the deed of December 20, 1849, in express terms. But the dam was erected by the company with the consent of the grantors, for the purpose, as is found, “ of collecting and preserving the water of the brook in order to afford a permanent and unfailing supply of water at said depot and water station.” There was no covenant on the part of the company to build or maintain a dam, and the obligation to do so, if any exists, does not rest in covenant, for the plain reason that there was no express covenant in the-deed to build or maintain a dam, and none can be implied. (1 R. S.
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Andrews, J.
It is claimed on behalf of the plaintiff, that the deed of March 26, 1851, from the Faulkners to James W. and Charles Knapp, to whose rights the plaintiff has succeeded, conveyed to the grantees therein, all the surplus water to which the grantors were entitled under the reservation in their deed to the Flew York and Erie Railway Company, of December 20, 1849. This claim presents the main question upon this appeal.
If the Knapps acquired by their deed the whole surplus water, then the judgment in so far as it adjudges that the defendants Pettingill, Griffis, Terwilliger and Wheeler, are entitled to draw water from the pipe of the railway company for the use of their premises respectively, is erroneous, for the reason that they do not claim such right under the Knapp title, but under and through the Faulkners and their grantees, by deeds or license subsequent thereto. If the Knapps did not by their deed acquire the right to the whole surplus water, then the right of the plaintiff to relief against the individual defendants will depend upon the further question, whether the rights actually enjoyed by them, are in conflict with the prior right of the plaintiff under the Knapp title.
The deed of March 26, 1851, conveyed to the Knapps, a hotel property and premises in the village of Chehocton (now Hancock), then owned by the Faulkners, the hotel having been erected on a part of the Faulkner farm (so called), and which at the time was supplied with water through a half-inch pipe, connected with a wooden conduit of the railway company, through which the company drew its supply of water for its depot and water station in Hancock. The deed after describing by metes and bounds the premises conveyed, and as containing nineteen-twentieths of an acre of land, more or less, proceeds as follows: “ and also all the right, title and privilege to, and of all the water now used on said premises, or to which the parties of the first part, or either of them, may be entitled to by use, occupation, reservation, or agreement with the Hew York and Erie Railroad Company, or otherwise, as appurtenant to said premises, together with the appurtenances thereunto belonging, or in any wise appertaining.” The reservation or agreement with the Hew York and Erie Railroad Company referred to in this deed, is contained in the deed from the Faulkners to that company, of December 20, 1849. By that deed the Faulkners conveyed to the company about four acres of land, on which its depot and water tanks were subsequently located, and the description of the land conveyed is followed by these clauses : “ the
party
of the first part also hereby conveys the right to draw water from any springs or streams on their premises, for the purpose of supplying a depot and water station at Chehocton, by means of pipes or other suitable device in a proper manner, with a full right of ingress and egress for the purpose of laying and repairing said pipes, or the device and the tanks connected therewith. The parties of the first part reserving to themselves the right by connection pipes, or other suitable devices, of drawing from the pipes or other device of the party of the second part, so much of the water as shall not be found necessary for supplying said depot and water stations. It being distinctly understood that the surplus water only is reserved; should there be none at any time, then and during such period, it shall be lawful and right for the party
of the second part to shut off the communication of the
party
of the first part from their said pipes, or other device.”
Construing the clause in the deed to the Knapps, relating to the water right and privilege, in the light of the surrounding circumstances, it seems to be very plain that it was not the intention of the Faulkners to convey to the Knapps all the surplus water, reserved in the deed to the New York and Erie Railroad Company, but only so much thereof as was then used on the premises conveyed, and to draw the same through a pipe connecting with the pipe of the company. The reference to the agreement with the New York and Erie Railroad Company, was inserted not by way of enlargement of the right of the grantees given by the prior clause, but as a limitation thereof, or at least such reference was made
ex dbumdanti
cautela, since the company under its deed, in case of an insufficient supply of water, was entitled to cut off all supply to the hotel premises, and the right granted to the Knapps would necessarily be subject to this contingency. It cannot be supposed that the Faulkners intended to deprive themselves of any right in the surplus water, or of the benefit to their remaining property of the surplus which should remain after satisfying the demands of the railroad company, and furnishing to the hotel premises the quantity theretofore used thereon.
This conclusion renders it necessary to consider whether the judgment declaring the rights of the individual defendants before named, is erroneous as to the plaintiff. The plaintiff’s right under the deed of March 26, 1851, as we construe it, is to draw from the conduit of the railroad company, so much of the surplus water for the use of their premises, as will pass through a half-inch pipe. The title of the Knapps to this portion of the surplus water was prior to the right of any of the individual defendants, and whatever rights they or any of them have acquired in the surplus water, are subordinate to the prior right of the plaintiff under the Knapp title, so that in case of a deficiency of water, the plaintiff is entitled to his supply before any of the individual defendants are entitled to draw. The judgment in defining the rights of the defendants is some
what obscure, and should we think, to avoid future controversy, be amended by declaring such priority. The plaintiff has no interest in any other respect in the determination relating to the rights of the individual defendants. They have acquiesced in the judgment by hot appealing therefrom, and we need not consider whether their rights as between themselves have been correctly" adjudged. The deed to the Knapps, as printed in the error book, omits the words
“
may he entitled to ” in the clause relating to the water-right above quoted, but they are inserted in the recital of the description of the deed in the complaint and in the findings (to which no exception is taken), and are manifestly necessary to complete the sense.
The remaining question arises on the plaintiff’s exception to the conclusion of law in the findings of the trial judge, that the plaintiff has no cause of action against the Erie railway or its receiver, for not maintaining the dam erected by the New York and Erie Railroad Company in 1850, and which was carried, away in 1857 and never rebuilt. There was no right to build the dam given by the Faulkners to the company in the deed of December 20, 1849, in express terms. But the dam was erected by the company with the consent of the grantors, for the purpose, as is found, “ of collecting and preserving the water of the brook in order to afford a permanent and unfailing supply of water at said depot and water station.” There was no covenant on the part of the company to build or maintain a dam, and the obligation to do so, if any exists, does not rest in covenant, for the plain reason that there was no express covenant in the-deed to build or maintain a dam, and none can be implied. (1 R. S. 738, § 140.) Nor in our opinion does the fact that the railroad company for its own convenience erected the dam in the first instance, create a continuing duty to maintain it for the benefit of the Faulkners, or those who have succeeded to their title. The deed of December 20, 1849, conferred on the railroad company an unrestricted right to draw water from any springs or streams on the premises of the grantors, for the purpose of supplying its depot and water
station by means of pipes or other suitable devices, but the right was burdened with the privilege reserved to the grantees to draw the surplus water not required for the use of the company, by connections with the1 pipes or other device which the company should arrange for the purpose of supplying itself with water. The company plainly in the first instance might have drawn the water through pipes connecting directly with the stream, and it assumed no duty to store it for the benefit of its grantors. The building of a reservoir afterward for its own advantage, created no easement in the Faulkners to have it maintained for their benefit. There was no indefiniteness in the grant. It conferred upon the company the right to all the water required for its depot and water station, and to take it by pipes or other devices. ■ The comprehensive language of the grant is inconsistent with the imputation of ■ an intention to limit the company to the use of such an amount of water as was then required for the purposes specified, or to confine it to the particular method of exercising its right, which should be first adopted, The practical construction of the grant by the parties is in accordance with this view. The dam was carried away in 1857, and from that time to the commencement of this action in 1875, the water was drawn directly from the stream, without, so far as appears, any objection being made on the part of the Faulkners or their grantees. The pipes were enlarged from time to' time, not only without objection on their part, but with their consent. Having reached the conclusion that the construction of the dam and reservoir imposed upon the company no duty to maintain it, as between the company and the Faulkners, the plaintiff as the grantee of the Faulkners can have no better right.
The judgment should be modified by inserting a clause adjudging priority of right to the surplus water to the plaintiff as against the individual defendants in case of deficiency, and as so modified should be affirmed, with costs to the Erie Railway Company, and without costs to the other parties.
All concur.
Judgment accordingly.