Jewett v. Jewett , 1853 N.Y. App. Div. LEXIS 125 ( 1853 )

By the Court, Gridley, J.

Two principal questions are made on the part of the defense in this cause. The first turns on the construction of the deed executed by Ezekiel Jewett and wife to Ezekiel Jewett, jun. dated the 20th of March, 1830, and recorded on the 1st of May in the same year. The deed conveys the watercourse, and by clear implication the water which it was intended to conduct to the mill mentioned in the pleadings and testimony. And the only material question is as to the duration, or extent, of-the grant. The granting part of the deed contains the words, to him “ and his heirs, executors and assigns forever”—words of a signification large enough to convey a freehold interest of inheritance to the grantee. There is nothing to limit these words, unless it be a covenant for quiet enjoyment, at the close of the deed. This covenant runs to the grantee and his heirs and assigns, and contains a stipulation that he or they may enjoy the .premises “forever, or as long as he may want the use of the water for machinery, and no longer.” Now there are two objections against a limitation of the grant by virtue of these words in the covenant. First, upon the general rule for interpreting repugnant clauses in a deed. The principle is thus laid down by Blackstone. (2 Black. Com. 381.) “ That if, in a deed, there be two clauses so totally repugnant to each other that they cannot stand together, the first shall be received and the last rejected.” Upon this principle, the covenant coming after the grant, and having repugnant words to the grant, must be rejected. But secondly, there is no necessary repugnancy in the different parts of this deed. The grantor might well make an unlimited conveyance of the water-course, -which should convey all his interest in it forever, and still be unwilling to warrant the grantee the quiet enjoyment of it for longer than he should want the use of the water for machinery. The two parts of this deed, therefore, are entirely compatible with each other.

There is a material distinction between an easement acquired by prescription, and one created by deed. (Angell on Watercourses, ed. of 1850, p. 269, § 252.) This writer says, “ An easement, to become extinguished by disuse, must have been acquired by use ; and the doctrine of extinction by nonuser does not apply to servitudes or easements created by deed. In the one case, mere disuse is sufficient; but in the latter there must not only be disuse by the owner of the land dominant, but there must be an actual adverse user by the owner of the land servient. Accordingly it was held in White v. Crawford, (10 Mass. Rep. 183,) that a grant of a right of way was not lost by a mere nonuser of twenty years. And in the case of Arnold v. Stevens, (24 Pick. 106,) that a grant of a right to dig ore was not lost by the neglect of the grantor, for forty years, to exercise the right, without an adverse enjoyment on the part of the owner of the land, and will not extinguish the right. And it was further held that a use and cultivation of the land was not evidence of an adverse enjoyment of the right to dig ore. See further, on this point, Angell on Water-courses, §§ 216,7,8,251, 2, and cases there'cited; Corning. Gould, (16 Wend. 531;) 4 McCord, 96; 3 Kent's Com. 448, 449. Upon this principle, which is abund- , antly established by the authorities, the right to the water, and 1 the right to have it flow in the canal or channel, being created by deed, was not lost by the omission to exercise the right for a few years, between 1830 and 1848. And there was no adverse possession by the defendant for the requisite time, to extinguish the right, even if the use of the land were deemed an adverse use of the easement. Nor was there any evidence of a permanent obstruction, or any decisive evidence of the absolute abandonment of the right by the plaintiff or his grantor, even if the right could be lost by that means. The water was diverted, and the bulkhead and dam were demolished by trespassers, and against the will, and in violation of the rights, of the owner of the water-course. His rights could not be impaired by the hostile acts of strangers ; nor by the fact that rather than engage in a fierce quarrel, he for many years sought and obtained an inadequate supply of water from other sources, to carry on his machinery. Again; the defendant’s counsel insists that the purchase of the -ff of an acre by Field, in 1827, of Ezekiel Jewett, and the mesne conveyances by which the title to said piece of land became vested in the defendant, operated to give a right to the water in West creek; and to authorize him to commit the acts of trespass complained of. It is not denied that when the deed was executed to Field the water was flowing through the canal, and that in point of law, and in point of fact, Field got no right to the flow of the water in West creek, through the fio of an acre of land; but it is contended that a subsequent purchaser of this piece of land, who bought it after the dam and bulkhead were demolished by trespassers, and when the water was flowing through the channel of West creek, took by his grant not only the land but also the incidental right to the flow of the water. And though the plaintiff’s grantor had before then got a deed of the water-course, which deed was on record, yet such purchaser took the right to the water flowing through the land; and the defendant, notwithstanding he bought the land with full notice of the plaintiffs’ right, took the same right to the flow of the'water in the natural channel that his grantor had. This is an erroneous conclusion. No man can lose a freehold interest which has been created by deed, and that deed recorded, by the fault of strangers. The act of trespassers, in demolishing the dam and bulkhead, thereby causing the water to flow through West creek, cannot divest a right thus acquired and held; and no authority maintains such a doctrine. The case cited in support of it falls far short of meeting the facts stated in the evidence before us. Without disputing the authorities when applied to proper cases, it is sufficient to say that they do not touch a case like this. Old Mr. Jewett never conveyed to Field any right to the water in the stream; and he afterwards, and before Field conveyed this piece of land, (which was in 1844,) transferred the water-course and water to the plaintiff’s grantor, and put the deed on record. Now, as between the grantee of this watercourse and the grantee of Field, the latter never obtained any right to the water running through the land. Field did not own any such right, and could convey none. The act of the trespassers who tore away the dam could not invest Field, or his grantee, with a right to the water which had been conveyed to Ezekiel Jewett, jun. before that time. It may be a question whether Field would, or would not, be responsible on his covenant contained in the deed to Russell, for the withdrawal of the water by the plaintiff; on which point we express no opinion.

Had the defendant the right which he assumes to have, his true course was to have brought his action, instead of committing the acts complained of in this suit; and without discussing his right to redress his own wrongs by force, in the way he chose to do it, it is enough to say that the assumption that he had any right to this water-course, or any right to commit the acts for which this action was brought was founded on an erroneous conclusion as to his legal rights. There was no conflicting evidence in the case, for the justice to submit to the jury. His ruling was right, and a new trial is denied.

[Oneida General Term, January 3, 1853.

Gridley, Pratt, W. F. Allen and Hubbard, Justices.]

Hew trial denied.