Rollins v. Blackden , 99 Me. 21 ( 1904 )

Wiswell, C. J.

Real action. After judgment was ordered for the demandant, a hearing was had on the assessment of damages for rents and profits, and the case now comes before us on a report of the evidence. The evidence tends to show that for several years prior to the commencement of the action the defendant had drawn water from a well on the demanded premises through an aqueduct to his own premises, and that he had supplied water thus taken to other parties. The defendant claimed that he had a lawful right to take the water from the demandant’s well, a right which originated, at least, by prescription.

Several questions have been argued, but it is necessary to consider only one. In any event, the demandant can recover only such damages as she has proved. Whatever may be the right of the defendant to set up a right to the water, or to an easement in the demanded premises by which he could lawfully draw the water, it is, at least, his privilege to deny that the demandant had any right to the water taken by him, or that she has been damaged. And this is what the defendant denies here. We think it requires no argument to show that the demandant has suffered no damages from the taking and use of the water from the well by the defendant, unless at the time of the taking she had some beneficial right or interest in the water, which was interfered with by the defendant.

The case shows that the demandant obtained her title to the demanded premises from Nathaniel Bryant and Adaline Bryant by deed dated May 4, 1882. Among the covenants in that deed is the following: “that they (the demanded premises) are free from all incumbrances except surplus water from well beside road conveyed to L. D. Hayes and the right to maintain his aqueduct.” It further appears that on May 14, '1881, Adaline Bryant had conveyed by deed to L. D. Hayes “the right to draw water by an aqueduct” from the well in question for all purposes, “with the right to convey the same on the southerly side of said road, but within the limits of the road as far as my land extends westerly, with right of ingress and egress for the purpose of repairing said well or aqueduct.” This deed contained the following reservation: “Whenever the lot on which said well is situated shall become the property of any party other than myself, then all rights hereby conveyed shall cease to this extent, viz: whoever may occupy said lot shall have the preference of the water of said well for all purposes whatsoever useful for the accommodation of said lot, or of any buildings that may be placed thereon, and said grantee, his heirs and assigns, shall have only the right to said water so far as not needed for said lot and buildings.”

This grant of the right to draw water from the well was determinable as to so much of the water as might be needed for the lot on which the well was situated and the buildings thereon, whenever the lot should become the property of another than the grantor of the water rigid ,• but until the lot should become the property of another, and afterwards until the water should be needed for the lot and buildings, and always as to so much of the water as should not be so needed, that is to say, the “surplus water,” the grant was absolute.

This latter deed was not recorded until after the demandant took her deed, but the language we have quoted from her deed shows that she took title with actual notice of the prior grant of the water right to Hayes. The “surplus water” which had been conveyed to Hayes was expressly mentioned and excepted from the covenant against incumbrances. The demandant therefore took her deed subject to the right created by the deed of Bryant to Hayes. McLaughlin v. Shepherd, 32 Maine, 143, 52 Am. Dec. 646; Rich v. Roberts, 48 Maine, 548. She did not acquire an absolute right to the water from the well, but only “to have the preference of the water of said well for all purposes whatsoever useful for the accommodation of said lot or any buildings that may be placed thereon.” Assuming that her rights remain as they were when she took her deed, it must be held that she had the first right to so much water as was useful and needed for the lot and buildings, but to only so much. Only in case she has been deprived by the defendant of her right of preference, or of any water that was needed for the lot and buildings, can it be said that she has sustained damages. It is not shown that the demandant has ever sought to exercise any preference, in the use of water, nor that she has ever needed any of the water for the use of the lot and buildings. In fact, no buildings have ever been erected or placed upon the lot. What her rights would be in case she needed the water for the use of the lot and buildings thereon, we do not decide.

The demandant will have judgment for the demanded premises, but is not entitled to damages for rents and profits.

Judgment accordingly.