Cummings v. Parker

In 1803, Jesse Young owned land, mills, and waterpower on the east side of the river: on the west side there was no mill, canal, or use of the dam or pond. In that year, and in that condition of land and water, Young received from Obadiah Belknap, for the expressed consideration of $10, a conveyance of an acre of land, bounded, in part, "as follows, viz. beginning at the northeasterly corner of the Belknap Lot so called, west side of Ammonoosuc River, opposite the said Young's mills, thence running twenty rods on the river bank . . . and is to contain one full acre be the same more or less." This acre was at the west end of the dam, and extended seven rods above the dam and twenty rods below it. By the boundary "on the river bank," the deed seems to convey the west half of the river; but it makes no express mention of the dam, or of any water-power or mill privilege, belonging to or conveyed with the acre; and the case does not show what the grantor could convey.

In 1808, no water-power having been used on the west side, the heirs of Jesse Young conveyed to Israel Swan and James I. Swan for the expressed consideration of $2,500, "two certain tracts of land with the mills, mill-dam and waterfall of Ammonoosuc River appurtenant thereto, all situated in said Concord [now Lisbon], comprising all the mill lot, so called, being N°. one in the first and second ranges, containing by estimation one hundred acres of land, be the same more or less, with the grist mill, saw mill and waterfall belonging to said lot, also one acre of land on the west side of the river opposite to said mills, conveyed, by Obadiah Belknap to our late father, Jesse Young Esquire, as per his deed thereof, . . . saving, reserving and excepting out of said premises" a lot "conveyed by our said father to Wm. Bean, . . . also a certain strip or piece of land, with certain privileges and immunities sold and conveyed by our mother Ruby Young, administratrix of our said father's estate, to Richard Gookins, as per her deed thereof."

In 1812, James I. Swan had acquired the title of his co-grantee, Israel Swan. There were then, on the east side, a saw-mill and a grist-mill belonging to James I. Swan, and a cloth-mill on the lot conveyed by Young's administratrix to Gookins. The three mills were operated by water from a single canal. On the west side there was no mill, canal, or use of the dam or pond. By the dam and canal, the natural condition of the stream, above and below the dam, was rightfully changed. In fact and in law, the water-power of the east side was not less than the capacity of the canal to pour the river upon the wheels of the three mills. In that actual and lawful condition of land and water, March 16, 1812, James I. Swan conveyed to Whiting, for the expressed consideration of $1,490, "a certain tract or parcel of land . . . being part and pracel of lot numbered one, . . . called the mill lot, . . . bounded as follows, to wit, beginning at an oak tree . . . thence running to a stake and stones on the westwardly side of the road . . . . thence northwardly by the westwardly side of the road, as that runs, to the north line of said lot, thence westerly on said north line of said lot to the mill pond, thence southwardly down the mill pond to the canal, thence down the canal to the northeast corner post of the saw mill, thence to the northwest corner post of said saw mill and on to the plot conveyed by Ruby Young, administratrix of Jesse Young to Richard Gookins, thence by said Gookins plot to the oak tree began at, together with the saw-mill apparatus and utensils and all the canal water privilege and a proportionate right in the main dam across the river, saving, reserving and excepting to myself, heirs and assigns forever the exclusive right of the grist or corn-mill, with two sets of stones and to draw water from said canal sufficient to supply the same in preference of any and all other machinery whatever, together with the road or way to the same. Also reserving to the public the road over the bridge. Hereby intending to convey all that plot and mill privilege situated west of the road and east of the river, extending from the oak tree, by the lines aforesaid, to the north line of the mill lot, saving only to myself, heirs and assigns, the grist or corn mill exclusively with its privileges and way as aforesaid, and to Richard Gookins all the plot and privileges conveyed to him by Ruby Young, as per her deed to him, and reserving to the public the road over the bridge as aforesaid."

This deed left in Swan a preferred right to draw from the canal sufficient water to operate his "grist or corn mill with two sets of stones," and it did not convey the cloth-mill right that had been previously sold to Gookins. The rest of "all the canal water privilege" passed to Whiting. The only limit of that privilege was the capacity of the canal. If the whole river would flow through the canal, Swan retained no more of the power than enough to operate his grist-mill with two sets of stones. If the whole river would not flow through the canal, the surplus remained his, with no limitation restricting its use to either side of the river. Before this conveyance Swan owned all the power of the river except the cloth-mill privilege: he could sell all his power to be used on either side: and this deed does not show that "all the canal water privilege" on the east side was less than the whole river. If Swan and Whiting had understood that only half of the river was divided among the three mills, and that Swan continued to own the other half in addition to what he reserved, it is not probable that the deed would have been silent on that subject. The three mills, for whose operation the deed retained on the east side "all the canal water privilege," had always had all the water of the river that the canal could carry to them; and there is no reason to suppose a provision restricting them to a smaller quantity would have expressed the intention of the parties. If it can be assumed that the canal was not large enough to carry off the spring freshets, it cannot be taken for granted that the river was large enough in August to fill the canal. If the entire stream, or more than half of it, would run through the canal during the dry season, "all the canal water privilege" did not leave half of the stream annexed, in that season, to Swan's acre on the west side.

A part of the boundary was, "westerly on said north line of said lot to the mill pond, thence southwardly down the mill pond to the canal." If this were severed from the rest of the description, it might include the east half of the pond or river above the dam. But the west line, when it reaches the canal, runs, not down the river, but "down the canal to the north east corner post of the saw mill, thence to the north west corner post of said saw mill, and on to the plot conveyed by Ruby Young administratrix of Jesse Young to Richard Gookins, thence by said Gookins plot to the oak tree began at." This excludes the Gookins cloth-mill, the grist-mill, and land between the canal and the river; and the exclusion of those mills and the lots belonging to them suggests a reason for running the west line down the canal, and not down the river. The expressed intention was not "to convey all that plot and mill privilege situated west of the road and east of the river," but "to convey all that plot and mill privilege situated west of the road and east of the river, extending from the oak tree, by the lines aforesaid, to the north line of the mill lot," with reservations. "By the lines aforesaid" "from the oak tree" "to the north line," the "plot" was bounded easterly on the road, and westerly on "Gookins plot," thence on a line running from "Gookins plot" by the north-west corner of the saw-mill to the north-east corner of the saw-mill, thence on the canal and pond to the north line. These metes and bounds do not include half of the bed of the river below the dam where the waterfall produced power, and are not evidence of an intention to make half of the river a limit of "all the canal water privilege." The bounds of the lot, the general and special descriptions of the lot and water-power, and the condition of both banks of the river agree in proof that the parties understood the canal was the measure of "all the canal water privilege," and that they did not recognize or contemplate a division of the river into two equal parts, and an annexation of one half to each of its banks. As, on the one hand, Whiting took no more power than the remainder of the canal privilege after it supplied the cloth-mill and grist-mill, even if that remainder was not enough for his saw-mill, so, on the other hand, he took no less than that remainder, even if it was more than the saw-mill needed. Of the water right conveyed to him the deed gives no other measure than the canal less the rights of the other two mills. Had the defendants owned the west side of the river and half of the dam and power in 1812, "all the canal water privilege" on the east side would have been limited by Swan's title on the east side. But as Swan owned not only all the east side except the Gookins privilege, but also the acre on the west side on which there was no mill, canal, or use of water, there is no ground for an inference that "all the canal water privilege" was understood by Swan and Whiting to be limited by the volume of half the river. In Seavey v. Jones,43 N.H. 441, there was nothing to show that "a privilege" was more than the operative power of certain mills. In this case there is nothing to show that "all the canal water privilege" was less than the operative power of the canal.

June 13, 1822, Swan's executor conveyed to Kelsea "all the right, title, interest, claim, and demand of which the said James I. Swan died seized of in and unto" the acre on the west side, "with the privilege of taking sufficient water from said mill dam and pond to carry a trip hammer, saving, reserving and excepting" to the grantor in his capacity as executor "all water privileges upon said premises, and the privilege at any time hereafter of erecting any kind of mills or machinery upon said premises, and of using the same for that purpose, and the right of passing and repassing over the same for that purpose, by paying to said Kelsea whatever damage shall accrue to said land by the use aforesaid, the damage to be appraised by three uninterested persons chosen by said Kelsea and the said" grantor. The defendants do not contend that this deed conveyed a larger water right than a trip-hammer privilege. The reservation is evidence of an intention of the grantor to retain, in his capacity as executor, a right of building mills on the acre, and using water-power there, "by paying to said Kelsea whatever damage shall accrue to said land by the use aforesaid." This reserved right of purchasing a right of using the acre was never exercised by any one. It does not appear that the executor was empowered by Swan's will to reserve such a right to be exercised by himself in any capacity. He had a testamentary power of sale; but it does not appear that any legal estate was vested in him. Whether the reservation was valid or void, the deed severed a trip-hammer privilege from the water-power of Swan's heirs, conveyed that privilege to Kelsea, and left the rest of their water right in them. Kelsea held his title nine years. In 1831 he conveyed the acre to Hamlin Rand as "a certain tract or parcel of land" described by metes and bounds. In the deed the description of the acre is followed by this clause: "Also I convey to him the said Rand by this instrument all my right to any water privilege which the aforesaid deed of June 13, A. D. 1822 may have given me." The defendants do not contend that this deed could convey a larger water right than Kelsea's trip-hammer privilege. That privilege and the acre were the mill-privilege conveyed to Kelsea by Swan's executor in 1822. They were Kelsea's mill-privilege from 1822 to 1831. They were the mill-privilege conveyed by Kelsea to Hamlin Rand in 1831. Were they "the mill privilege" conveyed by Hamlin's heirs to Robert Rand by the deed of 1843? That deed conveyed fourteen parcels of real estate, "all of said parcels owned and possessed by said Hamlin Rand at the time of his decease, a reference being had to his deeds for a particular description of each." "The mill privilege" of the deed of 1843 is to be found by a reference to the deeds of Hamlin Rand. By his deed from Kelsea, Hamlin had acquired the acre and Kelsea's trip-hammer privilege.

The only other deeds by which the defendants contend Hamlin acquired a title that made "the mill privilege" of the acre anything more than the trip-hammer privilege, were the simultaneous conveyances of 1824 from Swan's executor to Morrison, and from Morrison to Hamlin. Morrison was a mere conduit, employed because Hamlin was Swan's executor; and the two deeds may be regarded as a single conveyance from Swan's executor to Hamlin. As both the parties in this suit claim under this conveyance, they do not question its validity. The referee has not found that Swan's heirs did not assent to it. It conveyed "all the right, title, interest, claim and demand of which the said James I. Swan died seized of in and unto two certain tracts of land, with the gristmill, mill dam and waterfall of Ammonoosuc River appurtenant thereto, all situated in Concord [now Lisbon] in county of Grafton, comprising all the mill lot, so called, being number one in the first and second ranges, containing by estimation one hundred acres of land, be the same more or less, with the grist mill, mill dam and waterfall belonging to said lot, also one acre of land on the west side of the river opposite to said mill, saving, reserving and excepting out of said premises as saved, reserved and excepted in James Young and others deed of said premises to the said James I. Swan and to Israel Swan, bearing date August 22d A. D. 1808, recorded 25th May 1809, Lib. 49 fol. 78, one acre of land sold and conveyed by Jesse Young to William Bean, as per his deed thereof; also a certain strip or piece of land with certain privileges and immunities sold and conveyed by Ruby Young, administratrix of said Jesse Young's estate, to Richard Gookins, as per his deed thereof; also saving, reserving and excepting forty five acres east end of said lot, conveyed by the said James I. Swan to James Young and others by deed bearing date Decr. 31, 1808, recorded Lib. 47, fol. 520; also saving out of said premises a little more than an acre of land conveyed by said Swan to David Scott by deed bearing date Aug't 16, 1810, recorded Lib. 53, fol. 317; also saving out of said premises whatever was conveyed by said Swan to Stephen H. Whiting by deed bearing date March 16, 1812, recorded Lib. 55, fol. 298; also saving as aforesaid whatever was conveyed by said Swan to Ebenezer Cushman by deed bearing date April 23d, 1813, recorded Lib. 68, fol. 352; also saving as aforesaid ten acres conveyed by the said Swan to Ebenezer Morris and wife; also saving as aforesaid one acre sold by me as executor and included in my deed to Orlando Kelsea dated June 13th A. D. 1822."

The acre on the west side did not pass by this deed. It belonged to Kelsea, and could not be conveyed by Swan's executor; and for that reason, apparently, the deed excepted it out of the granted premises. The deed was substantially copied, so far as it could be, from the deed of Young's heirs to the Swans. "All the mill lot, so called, being N° one in the first and second ranges, containing by estimation one hundred acres of land be the same more or less, with the gristmill, sawmill and waterfall belonging to said lot, also one acre of land on the west side of the river opposite to said mills," is the language of the deed by which the Swans acquired their title in 1808. "All the mill lot, so called, being number one in the first and second ranges, containing by estimation one hundred acres of land, be the same more or less, with the grist mill, mill dam and waterfall belonging to said lot, also one acre of land on the west side of the river opposite to said mill," is the language of the deed by which Hamlin Rand acquired title from Swan's executor in 1824. In copying, the scrivener wrote "also one acre of land on the west side of the river opposite to said mill;" and instead of taking the acre out of his draft by an erasure, he took it out by the clause "also saving as aforesaid one acre sold by me as executor and included in my deed to Orlando Kelsea dated June 13th, 1822." This was one of eight saving clauses that excepted parcels of real estate which the grantor could not convey. The two exceptions of the deed of 1808 were substantially copied, and more were added to show how much of the premises of the deed of 1808 did not pass by the deed of 1824. The saving clause, excepting the acre, gave as a reason for excepting it the impossibility of the grantor's conveying to Hamlin Rand in 1824 the acre which the same grantor had conveyed to Kelsea in 1822. The grant and its accompanying exception conveyed neither the acre, nor any water right belonging to it. No water right belonged to the acre except Kelsea's trip-hammer privilege. The rest of the power belonged to the owners of the east bank. If more than the trip-hammer privilege had belonged to the acre, it would have belonged to Kelsea, the owner of the acre, and could not have been conveyed by Swan's executor to Hamlin Rand.

After the conveyance of 1822, and before the conveyance of 1824, Swan's heirs owned, on the east side, a part of "the mill lot" between the canal and the middle of the river. They owned the grist-mill on that land, and enough of the "canal water privilege" to work that "mill with two sets of stones." They also owned the residue of power left after deducting from the river both the "canal water privilege" and Kelsea's trip-hammer privilege. By agreement with the other owners of the "canal water privilege," the canal could be enlarged to enable Swan's heirs to use their residue on their own land. Without such agreement Swan's heirs could draw all their residue through a water-way which they could construct, on their part of "the mill lot," from the dam to their grist-mill, or to any other mills they might choose to build on their own land. If the reservation in the deed of 1822 was valid, they had a right to call on Swan's executor and Kelsea to endeavor to agree upon three appraisers of the damage that would be done Kelsea by their "erecting any kind of mills or machinery upon" his acre, and by their use of his acre for mill purposes; and they could resort to legal proceedings for taking a right of use, measured and defined with the reasonable certainty required in a taking of private property for public use under the mill act of 1868 Town v. Faulkner, 56 N.H. 255. Their use of Kelsea's property would be under the reservation of the deed of 1822, and not under the mill act: but the reservation gave them no right of use without prepayment of assessed damages; and the damages could not be assessed without a determination of the extent of the proposed use. After assessment and payment of the damages, they could exercise the right of use thus obtained by purchase. Without assessment and payment, their use of his acre would be a trespass. Such questions as the validity of the reservation, the quantity of water the heirs could elect to turn upon Kelsea's acre, the effect of an inability of Swan's executor and Kelsea to agree on three assessors of damages, and the duration of the reserved right of purchase, were not raised: no attempt was made by Swan's executor or heirs, or by any assignee or representative of either of them, to obtain the assessment, or make the payment, without which a right to use the acre under the reservation could not be acquired. The unexercised right of acquisition did not establish in Swan's heirs, on Kelsea's land, the title of a mill-privilege consisting of half of the waterfall. It cannot be assumed that "all the canal water privilege" left room for such a title. And if it were proved that the canal could not carry half of the river in the dry season, the heirs' unexercised right of purchasing a right to use Kelsea's acre would not annex to his land, or to their right to buy a right to use his land, one half of the waterfall which they could use on their part of "the mill lot." Under a statute incorporating them as a railway company, and authorizing them to take a right of way across Kelsea's acre on payment of damages to be assessed, their right to buy a right of way would not be a railroad before the damages were assessed, and before a location or survey was made. Their unexercised right to buy of Kelsea a right to use some or all of their water-power on his land was not a "mill privilege" in the sense in which those words were used in the deed of 1843.

A right of Swan's heirs to use Kelsea's acre on prepayment of damages to be assessed was a peculiar property that Hamlin Rand did not undertake to convey to himself in 1824 by the copied grant of the acre accompanied by the saving clause that expressly excepted the acre from the operation of the grant. If the right to compel Kelsea to sell a right to use his acre had been regarded by Hamlin as assignable and valuable, it is not improbable that he would have undertaken to convey it from the heirs to himself. But it is more probable that he deemed it unassignable or worthless than that he undertook to assign it by the copied grant of the acre apparently neutralized by the exception of the acre, with no mention of the right to buy a right of use. There is not a word in his deed that informs the reader of the existence of a right of purchase, or of the existence of any water right on the west side of the river. Like the deed of 1808, from which it was largely copied, it describes the lot on the east side as "the mill lot so called," and the waterfall as the "waterfall belonging to said lot;" and it describes the lot on the west side as "one acre of land." From these descriptions the reader would naturally infer that the whole "waterfall" belonged to "the mill lot;" that the only "mill lot" was on the east side; and that no mill-privilege belonged to the acre on the west side. If this is a deed to which the deed of 1843 refers "for a particular description of" "the mill privilege" on the west side, it is a refutation of the defendants' claim that half of the waterfall belonged to that privilege.

If the deed of 1824 had contained an express grant of all the property and rights reserved in the deed of 1822, that is, "all water privileges upon said premises and the privilege" of compelling Kelsea to sell a right to use the acre for mill purposes, such a grant would have been neither an annexation of half of the waterfall to Kelsea's property, nor a description of half of the waterfall as a mill-privilege conveyed by Hamlin to himself on Kelsea's land. The defendants' claim would not have been sustained by such a grant accompanied by the clause relating to all the title Swan had in "the mill lot" on the east side and the "waterfall belonging to said lot." Such a grant would have been consistent with the contemporaneous condition and use of the waterfall in the light of which it would have been read. In fact and in law, "all the canal water privilege" belonged to "the mill lot" on the east side where the three mills were located; there had been no use of water on the west side: and in the light of this actual and rightful condition of the stream, the supposed grant would not have established in Hamlin Rand, on Kelsea's acre, the title of a mill privilege consisting of half of the waterfall. If the reserved right of buying a right to use their water-power on Kelsea's land had been exercised by Swan's heirs, or had been conveyed from them to Hamlin Rand, and had been exercised by him, and if a mill-privilege had been established there under the reservation of 1822, "the mill privilege" of the deed of 1843 might have been more than the trip-hammer privilege. It does not appear how much of the waterfall would or could have been employed in such an enterprise. It cannot be assumed that half of the river could have been rightfully used on the west side. How extensive a right of using Kelsea's acre Swan's heirs or Hamlin Rand would have elected to buy, and how much of their water-power they would have elected to use in the mill they did not build, are mere matters of conjecture.

The meaning of "all water privileges upon" the acre, in the reservation of the deed of 1822, is a question which there is now no occasion to decide. Literally it included the trip-hammer privilege which that deed conveyed. If its legal construction did not include that privilege, it had no effect as a reservation of waterpower; the grant conveyed no more of the waterfall than enough "to carry a trip hammer;" the rest of the heirs' water-power would have remained theirs without the reservation. The rest was the grist-mill right, and the residue left after deducting "the canal water privilege" and the trip-hammer privilege from the waterfall. Whether the deed of 1822 did or did not reserve the trip-hammer privilege, or a right to buy a right to use it on the acre, the reservation had no meaning that is material in this case. Its legal construction did not establish in Swan's heirs, on Kelsea's acre, a mill-privilege consisting of half the waterfall taken out of their grist-mill right, or out of their residue. Their grist-mill right and their residue passed to Hamlin Rand by the deed of 1824 as part of the "waterfall belonging to" "the mill lot;" and if that deed had expressly conveyed all reserved "water privileges upon" Kelsea's acre, and the reserved right of buying a right to use his acre, it would not have introduced on the acre a mill-privilege consisting of half the waterfall, not carved out of the heirs' grist-mill right, or out of their residue, by the deed of 1822, and not left on the acre by that deed. The deeds of 1822 and 1824 did not move the grist-mill right across the river, and did not annex any part of the residue to Kelsea's land, or to a right of using his land obtainable by the reserved right of purchase which has not been exercised. If that right had passed to Hamlin Rand in 1824, it would have been extinguished in 1831 by his purchase of the acre without an exercise of the reserved right of purchasing a right to use the acre. Whether the reserved right of purchase was or was not conveyed to him, it was not "owned and possessed by said Hamlin Rand at the time of his decease," and therefore did not pass to Robert Rand by the deed of 1843.

After his purchase of the acre, Hamlin could use, on his own land on either side of the river, all the waterfall except what belonged to the Gookins cloth-mill and the Whiting saw-mill. His purchase of the acre in 1831 was not a creation of a mill-privilege. From 1822 to 1831 the trip-hammer privilege had been the only mill-privilege belonging to the acre; and when the deed of 1843 was made, the deeds of Hamlin Rand, to which that deed referred "for a particular description of" "the mill privilege," gave no description, particular or general, of a larger water right on the acre than the trip-hammer privilege. Neither by conveyance nor by use had any greater right been established or recognized as a mill-privilege on that lot.

In 1832, when Hamlin Rand could use on his own land on either side of the river all the waterfall except what belonged to the Gookins cloth-mill and the Whiting saw-mill, he leased to Boynton, for $5 a year, a right to draw water from the pond across the acre to Boynton's tannery for grinding bark, fulling, and rolling leather, and filling vats, with a stipulation that Boynton should not "draw the water from said pond so as in any way or at any time to interfere with the rights and privileges incident to the mills on the easterly side of said river, or draw any water when it may be wanted for the said mills," and that the lease should become void, "at the option of the said Hamlin," if he "should erect a factory or mill of any description on" the acre, or sell the acre "to any person for the purpose of erecting mills or factories." If this lease is competent evidence of the meaning of "the mill privilege" in the deed of 1843, its stipulation in favor of the existing mills tends to show that, in the dry season at least, "the canal water privilege" of the east side did not leave half of the waterfall to be used on the west side, and that the mills and factories which Hamlin could erect on his acre could not take half of the waterfall at all seasons without moving a part of "the canal water privilege" across the river. The lease has no tendency to show that at its date in 1832 an unemployed half of the waterfall was, or was understood or intended to be, a mill-privilege on the acre. Hamlin's right to build mills and factories on his own land on either side of the river, and to use in them all the waterfall except what belonged to the Gookins and Whiting mills, is not evidence of a division of the waterfall into two equal parts, and an annexation of one half to his unoccupied acre, and of the other half less the Gookins and Whiting rights to his part of the occupied mill lot. If he had intended to use, on his acre, or on his part of the mill lot, one tenth, or one half, or the whole of the surplus left by the canal, his unexecuted intention would not have created on either lot a mill-privilege of the intended size. There is no proof of an intention formed by him to use half of the waterfall on the acre. It does not appear that he ever determined to build a mill there, or to use there any part of his water-power. There is no evidence, presumption, or apparent probability that he contemplated any use of the acre that would deprive his part of the mill lot of any power furnished by the canal and carefully guarded in the Boynton lease. There may be some reasons for holding that "the mill privilege connected" with "the tannery land" was the privilege leased to Boynton for tannery use. But the defendants disclaim that construction.

The construction of the deed of 1812, Swan to Whiting, is material. Both parties in this case have no more of the waterpower than was left in Swan by that deed. The plaintiffs are not estopped to deny that the defendants have half of the power. The deeds of 1843, 1831, 1824, and 1822 are quitclaims; and so far as this case is concerned, all the titles passed that the grants of those deeds purported to convey: nothing remained to be done by the estopping force of covenants. There was no act, and no word written or spoken, by which Robert Rand was led to believe in and act upon any condition of rights or titles, or any state of things that did not exist. He claimed, not half of the river, but half of each of a large number of parcels of real estate of which Hamlin held the legal title at the time of his death. Among those parcels were the acre on the west side of the river, the grist-mill, and Hamlin's part of the mill lot on the east side, and all the water-power except what belonged to the Gookins cloth-mill and the Whiting saw-mill. Robert had no legal title; and the referee has not found that he had any equitable title. His claim was compromised and settled by the deed of 1843, which conveyed to him all the title Hamlin had to a large number of lots in the towns of Lisbon, Landaff, Bath, Lyman, and Whitefield. If Robert had claimed one tenth or the whole of the title held by Hamlin, his claim would not have been competent evidence of the meaning of "the mill privilege" "for a particular description" of which his deed refers to the deeds of Hamlin. It does not appear that the fourteen lots conveyed to Robert by Hamlin's heirs were, or were estimated to be, equal in value to the amount of Robert's claim, or that the compromise was made on a basis that would give him, in addition to thirteen lots and the acre, either half of the power of the river, or half of Hamlin's water title. The defendants' claim, that "the mill privilege" conveyed to Robert by the compromise deed included more than half of Hamlin's water-power, is supported by no evidence, and is disproved by the deeds to which that deed refers for a particular description.

Case discharged.

SMITH and CARPENTER, JJ., did not sit: the others concurred in the result.