Stevenson v. Wiggin , 56 N.H. 308 ( 1876 )

FROM STRAFFORD CIRCUIT COURT. I have read with attention the elaborate arguments for the plaintiff in this case, but find myself unable to be convinced by them. On the construction of the deed there seems no doubt. The defendants are entitled to take the water from all the springs on the plaintiff's land, and conduct the same to the land conveyed to them by the deed, for all uses and purposes forever. I cannot doubt that it was intended by this clause to convey the right to take all the water from all the springs if required for use on the defendants' land.

The plaintiff's counsel argues that the deed is to be construed with reference to the existing state of facts at the time of the conveyance. At that time there were no erections on the land conveyed, and no use was made of it by the defendants' grantors. From anything that appears in the case it is not apparent that at that time there was any use for the water on the land conveyed. If that were to be the criterion, the conveyance of the water right would have been simply nugatory. It must have been understood that the right to the water was purchased for the benefit of such business as should afterwards be carried on upon the land.

It is further contended, that the deed gives only the right to draw water from the springs. I am not sure that I understand this point. The right to draw water from a spring, one would think, must involve the right to make all such arrangements as were needful in order to draw the water, and the right to draw all the water must imply the right to make such erections and arrangements as were necessary for that purpose.

It is further objected, that no right was given to the defendants to pen up the water or build reservoirs; and, to sustain this view, the case of Walker v. Stewart, 18 Law Reporter (new series) 396 is cited. It appears to me that that case has no application here. From the account given of it in the argument, it would appear that in that case the quantity of water to which the party had a right was drawn in question. That quantity being regulated by the size of the pipe through which it was drawn, the court held that the quantity was limited to so much water as would run through the pipe without increasing its head by a dam. I have no doubt that the construction of that deed was correct, — but in the case under discussion the defendants have a right to all the water, if taken in good faith, to be used upon the land; and the only question is, whether the defendants have a right to use the necessary means in order to avail themselves of all the water.

The court has found that the defendants, in good faith, require all the water to be used on the land, and that they have done what is proper, and no more than what is reasonably right and proper, in order to avail themselves of it.

I understand that the adaptation of suitable means for the purpose of utilizing the water of springs is a matter of skill. Sometimes, when the water makes its appearance in a single jet or stream coming out of a hard bank, or a cleft in a rock, the arrangements may be very simple. In other places, where the water seems to be more diffused, oozing as it were out of a considerable surface, and gradually collecting into a stream, a different and more elaborate if not more complicated arrangement is required. I do not see how this can be matter of law. I do not see how the court can ever undertake, as matter of law, to say that one arrangement is proper and another improper. It must in all cases be a matter of fact, to be determined by the application of the requisite skill and experience. This being so, and the court having found, as matter of fact, that the defendants have done nothing more than was reasonably necessary for the purpose of saving and using all the water, in good faith, required by them for their works, situated on their land, to which this right to take water was made incident by the conveyance, it appears to me that the action cannot be maintained.

"Cuicunque aliquis, quid concedit concedere videtur et id sine quo res ipsa esse non potuit. Whoever grants a thing is supposed also tacitly to grant that without which the grant itself would be of no effect.

"When anything is granted, all the means to attain it, and all the fruits and effects of it, are granted also, and shall pass inclusive, together with the thing, by the grant of the thing itself, without the words cum pertinentiis, or any such like words.

"Therefore, by the grant of a piece of ground is granted a right of way to it over the grantor's land, as incident to the grant; and, in like manner, it seems that by a reservation of the close is reserved also a right of way to it; and in the grant of trees is granted power to enter on the land to cut them down and take them away. So, where a man leases his land and all mines where there are no open ones, the lessee may dig for the minerals; and by the grant of fish in a man's pond is granted power to come upon the banks and fish for them.

"So, it has been observed, that where the use of a thing is granted, everything is granted by which the grantee may have and enjoy such use; as, if a man gives me license to lay pipes of lead in his land to convey water to my cistern, I may afterwards enter and dig the land in order to mend the pipes, though the soil belongs to another and not to me." Broom's Legal Maxims 198, and cases cited.

The doctrine, so fully and clearly expressed in the above extract, is so well established as to be elementary. The only difficulty, if any difficulty there be, is in the application.

I cannot, however, find any real difficulty in the present case. The means used, and the interference with the land, seem to be not at all disproportionate to the importance of the right granted; and, on the whole, I feel quite clear that there should be judgment for the defendant, without the necessity of considering at all the question as to the form of action.

LADD and SMITH, JJ., concurred.

Exceptions overruled, and

Judgment on the verdict.