Urch v. Portsmouth

44 A. 112, 69 N.H. 162

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1897
• Status: Published

Opinion

Pike, J.

The question whether the waterway over the fiats, with the right to use the water flowing in and out of the millpond as it was used September 1, 1878, was or could be acquired by the defendants’ grantor by prescription, has not been considered. Assuming that it was acquired, it passed to the defendants upon their purchase of September 1, 1878. Gibson v. Brockway, 8 N. H. 465.

The plaintiff claims that the right to use the water at the old mill-site passed to his grantor by the defendants’ deed of November 23, 1891, as an appurtenance to the premises conveyed.

The committee which acted for the defendants in making the sale to the plaintiff’s grantor, could give title to only such land as they had been authorized to convey. Savage v. Rix, 9 N. H. 263; Backman v. Charlestown, 42 N. H. 125, 129. This authority did not include a sale of the waterway over the flats, above which was the old mill-site, and to which, if to any land, the right in question was appurtenant. In conferring the authority, the defendants expressly reserved “ the full width of the present waterway ... as a tideway.” If the deed given to Tucker in behalf of the defendants can properly be construed as includding the right claimed by the plaintiff, it did not convey such right because the committee had no right to convey it.

Judgment for the defendants.

Chase, J., did not sit: the others concurred.