Keysar v. Covell , 62 N.H. 283 ( 1882 )

The clause in the deed of Willey, relating to the use of the water of the spring, designated Young as the person to whom, by express agreement, the water of the spring was given, and he was a sufficient party to the deed to take the thing granted. The true construction of this clause in the deed is found by ascertaining the intention of the parties (Houghton v. Pattee,58 N.H. 326, Morse v. Morse, 58 N.H. 391, Corwin v. Hood, 58 N.H. 401); and nothing is plainer than Willey's intention to convey to Young and his heirs the water of the spring and the right of maintaining an aqueduct from it to Young's premises. After so long a period of time, with continuous possession and enjoyment by the grantee of the thing granted, the assent of the grantee and the delivery of the deed will be presumed. Canning v. Pinkham,1 N.H. 353; Peavey v. Tilton, 18 N.H. 151. If the clause giving the water to Young cannot be regarded as a good conveyance to him, it is at least an exception of so much from the grant to Charlotte Willey and William Covell, under whose deeds the defendant holds his title, and he can claim no more than they had to convey. The defendants' grantors were parties to the Willey deed; and by accepting it they were bound by all its terms, and they, with the defendant in privity holding under them, are estopped from claiming the water of the spring, which in the same deed was excepted from the terms of their grant and expressly given to Young. If the grant of the water was limited in use to Young and his family descendants by the words "so long as they may want it" (Noyes v. Hemphill, 58 N.H. 536), the conveyance by Young did not operate as a forfeiture of which the defendants can take advantage. The grant failing by breach of the condition, the thing granted would revert to the heirs of Willey, and not to the defendants to whose grantors the water was never conveyed. Dow v. Edes, 58 N.H. 193. As against the defendants having no title, the title of the plaintiff in possession is good.

Irrespective of the grant by deed, the plaintiff has an indefeasible title by prescription to the water of the spring, and the right to carry it to his premises through his aqueduct. Before the deed of Willey was made, Young, then owning the premises now possessed by the plaintiff, was using the water of the spring through an aqueduct constructed by him to his own land, and he continued to maintain the aqueduct and use the water, under claim of right, without interruption and without objection from any one for more than twenty years. This gave Young a good title to the water and the aqueduct right, which title by subsequent conveyances the plaintiff holds. Watkins v. Peck, 13 N.H. 860. It does not appear in the case that Young sought the conveyance made by Willey, and so admitted that he was not holding under claim of right. Id., p. 372. The clause in the deed giving Young the water may be regarded as a recognition of Young's claim, and not an interruption or denial of it. The plaintiff having shown a title to the water of the spring, and the disturbance by the defendants of his enjoyment of it, he is entitled to recover in this action for the injury. Noyes v. Hemphill, supra.

Judgment for the plaintiff.

DOE, C. J., did not sit: the others concurred.