Harlan v. Moore , 9 Watts 360 ( 1840 )

The opinion of the court was delivered by

Sergeant, J.

We think the true construction of this will has been given to it by the court belo\y, that William Moore took, by the devise to him, a fee simple in the twenty-four feet from the mill to the dam; and that the phrase, "to enable him to repair the race at pleasure,” is not sufficient to convert the devise into a mere easement, but is rather to be taken as an expression of the reason why the gift is made. As William Moore was, by the will, constituted the owner of the mill and race, it was proper he should have a control over the ground bordering upon the race, and the testator seems to have used apt words to give him the soil itself. Though a different construction might perhaps be given, yet it would be one founded rather on conjecture and implication than on the direct and legal consequences of the terms used, and is not absolutely necessary to render the will harmonious and consistent throughout. For we find that the testator, intending by a subsequent devise to give to his grandson, John Galbraith, the tract comprehending the ground through which the race runs, takes care, at the time of the devise to his son William Moore, to reserve to his grandson the right to erect and keep in repair one or more bridges across the race, and also to use as much of the water in the race as should be necessary to carry on the distillery and to water sufficiently twenty acres of meadow. These are strictly privileges or easements, conveyed by appropriate language, and which could not take effect as such unless the property, out of which they were to be enjoyed, vested in the defendant, William Moore. The testator unquestionably gives William Moore a fee simple in the race through the grandson’s tract; and there appears to be no reason why he should not likewise give him in fee simple the twenty-four feet immediately bounding it. The race, it appears, was constantly in need of repairs, and under these circumstances it could not be of great importance to the grandson whether the son had the fee simple in the adjoining ground, or only a right to pass and repass along and to occupy it whenever repairs were necessary. At any rate, we think the language of the devise is too strong to be got over, even if all the objects of the will could be accomplished, (as perhaps they might,) by holding that the defendant acquired by the devise merely an easement. It has been suggested that, by this construction, the grandson’s distillery is thrown upon the son’s ground. It is stated by a witness to have been situated ten or fifteen feet from the race on the south side. If the twenty-four feet embraced equally both sides of the race, then it would seem the distillery lies out of it. If it did not, as to a small portion of it, yet we think the distillery is clearly devised to the grandson by this will, and so much of it as may happen to lie within the twenty-four feet must be considered as devised to him in the same manner as the rest, in order to render the will consistent throughout.

Judgment affirmed.