Howard v. Bates , 49 Mass. 484 ( 1844 )


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  • Wilde, J.

    The general question submitted on the report of the facts is, whether the respondents have a right to flow the lands of the complainant, to the extent alleged in his complaint, without making compensation for damages; or whether theii right is limited, conformably to the use of the waters of the stream at the time they acquired their title. The lands described in the complaint were formerly owned by Seth Hastings and others, from whom the complainant derived his title; and by his title deeds, the respondents’ right to flow the lands conveyed, which had been before granted to Ray and Scott, from whom the respondents derive their title, is expressly reserved. So that the case depends on the construction of the deeds to Ray and Scott.

    In the deed from Seth Hastings to the said Ray and Scott is the following clause: “ Together with all the right and privilege, which the said Seth Hastings has, to flow any land belong-? mg to him in part, and lying in common and undivided with *487the said Nathaniel Miller, Whiting Metcalf, and the heirs of Samuel Penniman, situate and lying on the westerly side of said canal and Charles River.” A like clause is contained in the deeds to said Ray and Scott from the other tenants in common.

    The counsel for the complainant contend that the tenants in common flowed their lands by virtue of mutual licenses, before their grants to Ray and Scott, and that the right of each was limited to the extent to which the waters were thus flowed.

    But we think that there is no ground for this argument. Each of the tenants in common had a right to the possession of the whole property, and might flow the whole ; but they occu pied it together, according to their several titles, and not under mutual licenses. Whatever rights they had to flow the lands now belonging to the complainant were, in express terms, granted to Ray and Scott; and it makes no difference that the grants were made by separate deeds. There is no limitation, in these deeds, to the grantees’ right to flow the lands, so far as might be necessary or beneficial. Nor can it be inferred, from the language of the deeds, that it was intended to limit the right of flowing conformably to the former usage. Nor is the conformity to this usage, by the grantees afterwards, any evidence of such an intention or understanding ; for it does not appear that the grantees, or respondents, had any use for an increased head of water, until the erection of their new mill. If, then, any limitation of a grant might be implied from circumstances, there is no ground for any such implication in this case.

    Exceptions overruled

Document Info

Citation Numbers: 49 Mass. 484

Judges: Wilde

Filed Date: 10/15/1844

Precedential Status: Precedential

Modified Date: 11/10/2024