Vandenburgh v. Van Bergen , 13 Johns. 212 ( 1816 )

Pi/att, J.

delivered the opinion of the court. This is ári action oil the case for overflowing the plaintiff’s land, by means óf a mill-dám erected by the defendant on the Cocksackie creek.

The defendant claims A right to maintain the dam, and tó dd the acts teomplained of, partly under a conveyance, in fee simple; from -John Brouck (one of the patentees) to Caspdru'c Brouck, dated the 29 th of June, 1734, for an undivided moiety; and partly under á conveyance, in fee simple, from Henry Van Bergen and others to Anthony Van Bergen, dated the 20lh of October, 1784, for the other undivided moiety,

The first deed conveys a saw-mill on the Cocksackié creek, ■ with the ground and water stream thereto belonging,” “ and full liberty and license to erect and build another mill on any other place at, or on,, the same creek, with like liberty of ground and stream ofwaterM The latter of said deeds conveys (referring to another deed)' “ an.undivided moiety of, in, and to, a certain fall, situate, lying, and being in a tract of land granted to Martin. Garritse and John-Brouck, in a certain creek or kill, known by the name of the Cocksackie kill,-and privilege of'erecting a mill thereonwith the■ ground and water stream of the said kill; and, also, one acre of ground adjoining sáid fallM '

The defendant deduces all the interest and estate granted by" the said' deeds, by a chain of conveyances down to himself; and. it appears that about 4 or 5 years ago he erepted the mill-dam, nów complained of, upon his own land, at a fall On said creek Vrhere no mill or dam had ever before been built.

The plaintiff proves a continued and uninterrupted possession of his farm for the last GO years, derived from Mantis Brouck, a daughter of the patentee.

I am of opinion that the defendant has failed in Bis attempt to show a right to overflow the plaintiff’s land.

The deed from the Van Bergens (dated the 20th of October, 1784,) for their moiety, does not, in the terms of' it, profess to-grant any privilege in the water beyond the limits of the mill-site, or falls, intended to be conveyed by that deed. The right of building a dam at that place must be exercisedm such a man» ñer as riot to injure the previous rights of other persons. Besides, the grant of ah undivided share in a stream of watgf would riot authorize the grantee to appropriate or modify tfie stream to the injury of others, who have a joint interest in it. The property in a stream of water is indivisible. The joint proprietors must Use it as an entire stream, in its natural channel. A severance would destroy the rights of all.

As to the right claimed under the deed to Casparus Broubk, in 1734, it was a.“ liberty and license” to-erect a mill on any part of the creek, and.to Use and convert the stream of writer in a reasonable manner for that purpose; and it does not appear that the present dam is unreasonably high, or unusually con* structed.

Casparus Brouck himself would, undoubtedly, have had a right to do the very act now complained/of, against any person claiming title under a subsequent conveyance from John Brouck, The question, therefore, is, whether the privilege granted, or the license given, by the deed'to Casparus Brouck, has expired os been extinguished.. According to Co. Litt. 145. A., and Vin. tit. Election, (Com. Dig. tit. Election,) “ where an interest vests immediately by the grant, election may be made by the heirs,’’ &c. So, “ where an election is coupled with an interest, such election is descendible.’’ But, “ if nothing passed or vested in the grantee before his election, it ought to be made in the life of the parties.” “ When election creates the interest, nothing passes till election.’’ “ A feoffment of a house and 17 rieres of land, parcel of a waste, the feoffee, and not his heirs, must elect,, or else the 'grant is void..’’

Tested by these rules, I am clearly of opinion, that the grant or license to build a mill anywhere on the Cocksackit Creek, with the land and water necessary for that object, vested no interest or estate absolutely in the grantee, at the time of executing the deed. The right was potential merely; it could', vest only upon the location and election to be made’by the-grantee. It appears there Were, at least, four mill-sites on that creek. It is certain that Casparus Brouck, in his lifetime, was not actually vested with the title to any'particular mill-site, by. Virtue of that general grant. His election and location was necessary to consummate the title'. He never exercised his right , and by his death it became extinct.

The-election, in this case, was not “ coupled with an interest,” jn ¿jjg sense of Lord Coke. He means-an-election coupled with an interest which vests absolutely at the time of the grant. ,As if there had been a grant of a definite mill-site coupled with the privilege of'-flowing. Then the.interest in the. principal subject of the grant Would have vested immediately; and the. appurtenant-right of flowing would have followed it to the heir, who might' elect to exercise the privilege of . flowing whenever he' pleased* The plaintiff is entitled to judgment. ' ,

Judgment for the plaintiff.