Woodcock & Vinton v. Estey , 43 Vt. 515 ( 1871 )

The opinion of the court was delivered by

Ross, J.

The title to the spring in controversy was originally in Joseph, Henry, and Rufus Clark. Both the plaintiffs and defendant claim title from them through several conveyances. The Clarks executed a lease to John Holbrook and Joseph Fessenden, August 7, 1826. They also conveyed by deed to Joseph Fessenden and John C. Holbrook, December 29, 1827.

The county court held that the rights of the parties to the spring depended upon the construction of the deed of December 29, 1827, unaffected by the lease. We think in this there was no error. Joseph Fessenden and John C. Holbrook, in conveying the title, which has come to the plaintiffs, attempted to convey, and did convey, only the-rights and premises which they acquired under the deed of December 29, 1827. The intermediate conveyances are limited to what was acquired under that deed by Fessenden and John C. Holbrook. John C. Holbrook and John Holbrook are different individuals, but the Joseph Fessenden named in the lease is the same Joseph Fessenden named in the deed. The rights to the premises which Joseph Fessenden may have acquired by the lease-, if any, are immaterial to the determination of the question in this case, inasmuch as he has not attempted to convey anything, other than what he acquired under' the deed of December 29, 1827. The plaintiffs stand related to the spring and aqueduct, under the conveyances, in the same manner as did Fessenden and Holbrook by virtue of the deed of December 29, 1827. In that deed is the following exception: “ Always excepting and reserving to themselves, their heirs and administrators, the following rights, privtheges and immunities: The spring or fountains from which the water is now conveyed to said Clark’s house, also the land adjoining to the distance of three rods each way from said fountain, also the right or privthege of free ingress, egress and regress at any and all times to the aqueduct that conveys the water from said spring to said house, and the privthege of digging, altering and making embankments, as they may think proper or necessary for the security of said aqueduct and spring or fountain, and of relaying the logs or pipes for the conveyance of said water, and repairing them at pleasure, at all times hereafter, and also the right of passing to and from said spring and aqueduct from the highway, for the purpose of taking the water from said aqueduct opposite or nearly opposite to Noah Fisher Jr.’s dwelling-house, at such place as the said Joseph, Henry, and Rufus, their heirs and assigns, may think proper, they taking care not to expose or injure said land ; ” “ and also reserving, as aforesaid, the right and privthege of a way to the pond, on land conveyed by this deed, for watering the stock and cattle of the said Clarks“ and the said Joseph Fessenden and John C. Holbrook, their heirs and assigns, are not to injure or damage the said spring or fountain, or aqueduct now laid, or to be laid hereafter, to and from said spring ; but the full and safe right is retained and reserved of using and improving the same as aforesaid forever hereafter.”

This language clearly and explicitly excepts the spring, the land three rods each way from the spring, and the aqueduct, from the operation of said deed. If the Clarks had conveyed the spring, surrounding lands and aqueduct, using the same language, the grantee would have obtained a good title to the same, by every rule of construction. No greater definiteness or nicety of expression is necessary to create an exception from the operation of a deed than is required to make a good and valid conveyance. 2 Washburn on R. P., 639, 640. The plaintiffs have therefore obtained no title to the spring, or the land for three rods around the same, or the aqueduct conveying the water from said spring, in 1827, to the Clark buildings ; and as they must show a right to the spring to maintain an action for a., diversion of water, this disposes of that branch of the plaintiff’s case, without inquiring in regard to the defendant’s title to the same.

But the plaintiffs also claim damages occasioned to their land by the defendant’s digging and laying an aqueduct on their land outside the limits reserved in the deed of December 29,1827. For this injury the county court held the plaintiffs might recover, and we think correctly. In thus deciding we have no occasion to controvert the doctrine urged by the defendant’s counsel, that the grant of a thing impliedly carries with it that which is necessary for the beneficial enjoyment of the thing granted; for no such enlargement by implication is demanded where the grant, in and of itself, contains all that is necessary for the beneficial use of the thing granted. If A. grants to B. a spring of water in the centre of A. ’s field, and makes no provision by which B. can lay an aqueduct to the spring, the grant would by implication carry with it to B. the right in a reasonable and proper manner to lay an aqueduct across A.’s field to the spring. But if, in making the grant of the spring, A. had marked out a particular place in which B. could lay down an aqueduct and convey the water from the spring, B. would have no right to lay an aqueduct to the spring in any other place, though it might be more convenient for B. to do so than to lay it in the place pointed out in the deed. In the one case, the parties to the deed not having fixed upon any place for conveying the water from the spring, the law interprets the grant to mean that B. shall have a proper and reasonable place for conveying away the water ; but in the other case, the parties having interpreted and limited the grant and fixed the place for conveying the water from the spring, there is nothing left for interpretation or implication by the court, and the court have only to enforce the grant as agreed upon by the parties. The exception in the deed from the Clarks to Fessenden & Holbrook provides for “ relaying the logs or pipes for the conveyance of said water aud repairing them at pleasure at all times hereafter.” This extended across the land then conveyed by them, and confined their right to repairing and relaying the logs or pipes. This evidently means at the same place where the aqueduct was then laid. If the defendant has succeeded to the spring and the rights of the Clarks excepted from the conveyance of December 29, 1827, he has the same right the Clarks had, to relay the aqueduct in the place where it was then laid, But no other or greater right." He has laid his aqueduct at a different place, though in the same general direction, and for this he is liable whether he owns the spring' or not.

These views are decisive of the case without inquiring whether the defendant has succeeded to the rights excepted by the Clarks from their deed of December 29, 1827. But as that question has been discussed, we have considered it. No question is made but that the title of the Clarks to the spring has passed to Mrs. Wesselhoeft; but it is claimed she did not convey it by her mortgage to the Windham Provident Institution for Savings. If her mortgage conveyed this spring and premises, then the defendant has the title to the premises which the Clarks excepted from the operation of their deed to Fessenden & Holbrook. Dr. Robert Wesselboeft had erected douche ap.4 bqth houses in the immediate vicinity of this spring and used them, supplied with the water from the spring, in connection with, and as a part of, his water-cure establishment, which was situated at a-little distance from the spring, and separated from it _ by lands owned by other parties. Mrs. Wesselhosft in the mortgage, after describing the lot on which the main building stands by metes and bounds, proceeds thus : “ Comprising all the land and buildings heretofore occupied by my late husband, Dr. Robert Wesselhoeft, for the purposes of a water-cure establishment, together with all the water and springs used in connection with said establishment, pails, douche houses and bails used in connection therewith,” &c. This description does not confine- the springs conveyed to those whos6 waters had been conveyed to the main building, standing on the first described piece of land, but covers all that had been used by Dr. Wesselhoeft in connection with said establishment. We think this description covers the spring in question and conveys it. By the general term spring, so much land is conveyed as is reasonably occupied by the spring, and its embankments, as was decided in Mixer v. Reed, 25 Vt., 254. Where a spring has been set out and separated from other lands by the owner, so as to extend three rods each way from the central portion covered by the water, we think under the word “ spring ” the land so set out and separated from the other lands to be used with the spring would be conveyed. 2 Washburn on R. P., 623. This construction gives to the defendant the . same rights and premises excepted by the Clarks from the operation of their conveyance of December 29, 1827.

Judgment affirmed.