Amidon v. Harris
113 Mass. 59
Mass.
1873
Check Treatment
Endicott, J.

This indenture conveyed to Rufus Amidon, his heirs and assigns, the right to draw and take so much water from the main pipe running from the spring to the mansion-house of Charles Negus, as was or should be necessary for the supply of the families resident in the house described as owned by Amidon. This right was to continue so long as the water should run from the spring through the main pipe. At the date of the indenture Amidon did not own the premises on which the house stood, but occupied them with his wife, the present plaintiff, who then as now held them in fee in. her own right. The defendants, who own the estate of Negus,.subject to all the rights conveyed to Amidon, contend that the indenture conveyed an easement appurtenant to the estate of Amidon in the premises; and that, as his estate expired with his life, so did the easement.

But we do not think this the true construction of the indenture, or that such was the character of the interest conveyed. The indenture conveys an easement in gross to take a certain *64amount of water from the pipe. It was assignable and inheritable, to him, his heirs and assigns, and the use was restricted to the particular house now occupied by the plaintiff. Such a right may be conveyed without being restricted to a particular locality; and its character is not changed by reason of a restriction in that respect. A man may purchase such right restricted in its use to a particular house, or to a particular purpose, as for running a mill, although he may not own the house or mill; he may do this in contemplation of owning or of building a house or mill, and when he does so, the easement to take the water becomes annexed to the house or mill, or in other words may be availed of to the extent granted. Amidon not owning the fee, and the grant being to him, his heirs and assigns, affords a presumption that it was not intended to terminate the easement with his estate in the premises, but that it was intended it should pass to his heirs and assigns, who could enjoy it only so far as they could properly and legally annex it to the premises. The conveyance of the easement by the heirs of Amidon to the plaintiff gives her the power of enjoyment, and she can enforce any rights to the water which Amidon could have enforced. Groodrich v. Burbank, 12 Allen, 459. Lonsdale Co. v. Moses, 21 Law Reporter, 658, 664. Hankey v. Clark, 110 Mass. 262.

The easement being created by indenture with mutual covenants binding upon the heirs and assigns of both parties, the party entitled to enjoy it at the place designated may maintain an action for its disturbance. . For all purposes- of enjoyment and of maintaining the right to enjoy, it is annexed to the plaintiff’s estate, and is a charge upon the lands of the defendants. White v. Crawford, 10 Mass. 183, 188. Bowen v. Conner, 6 Cush. 132, 137. It is too well established to require an extended consideration of the authorities, that a grantor has no right to derogate from his own grant, and that there is always an implied covenant that he will do no act to interfere-with, prevent or diminish the full enjoyment of the right granted. Dexter v. Manley, 4 Cush. 14. It is misfeasance in a grantor to defeat the grant by a voluntary act on his part. The distinction was taken in an early case between the disturbance on the part of a grantor, by his own *65act, of an easement conveyed by him, and an alleged failure on his part to do some act, which not being done, the easement became worthless. As where the grantor of a way or a watercourse, or the right to draw water at a pump, cannot stop the way or the watercourse, or remove or destroy the pump, but is not bound to keep them in repair. Pomfret v. Ricroft, 1 Saund. 321. By such act the grantor attempts to exercise control over the then thing granted, in derogation of his grant, in violation of the implied covenant that the grantee may enjoy it as against him. As when one covenants that another shall have a certain amount of wood annually, and the covenantor destroys all the wood, an action lies against him. And when a lessee covenanted that at the seasons for burning lime he would supply the lessor with lime at a certain price, it was held there was an implied covenant that he would burn lime at all such seasons, and that it was no defence that at one season no lime was burned, so that the lessor could not be supplied. Shrewsbury v. Gould, 2 B. & Ald. 487. Sampson v. Easterly, 9 B. & C. 505. Saltoun v. Houstoun, 1 Bing. 433.

Applying these principles to the present case, it is clear, in the absence of a distinct provision to the contrary, that there is an implied covenant in the first, second and third clauses of the indenture, that Amidon, his heirs and assigns, shall have the right, as long as the water runs in the main pipe, to draw a sufficient supply for the families occupying the house of the plaintiff, without any disturbance by Negus or those claiming under him. The words, “ so much water as may be necessary for the supply,” &c., &c., are not to be construed as merely a restriction on its use by the grantor, as contended by the defendants. They determine the extent of the use, apply to the grantor as well as the grantee, and indicate the measure of the rights of both parties. While the grantee may not use more than is required for the supply of the house, the grantor cannot limit or restrict the supply below that quantity. The words of a covenantor, or of a grantor, are to be construed more strictly as against himself. If by any act of Negus, or those claiming his estate, the supply is stopped or materially diminished, an action will lie. Nor is it necessary that *66the act should be done by the owner in person. It is no less the act of the owner, when done by another acting under his permission or authority; and the granting permission by an oral agreement to Bugbee to draw the water as alleged, and thereby to deprive the plaintiff of the enjoyment of the easement, is a breach of the covenants of the indenture by the defendants.

But the defendants contend that, even assuming this to be the law, there is a recital in the preamble which, properly construed, enables them to grant similar privileges without limit, whatever may be the consequences to the plaintiff. In the preamble Negus recites that “it is his intention to dispose of privileges to use said water so conveyed as aforesaid to such individuals as may desire to purchase the same.” It is not necessary to consider how far these words of recital in the preamble can control the covenants, which are necessarily implied from the express covenants entered, into by the grantor in the main body of the instrument, because we do not think they have the meaning contended for, or were intended as a reservation to the grantor to the extent of impairing the privilege of the grantee and derogating from and making worthless his grant, which is elsewhere given in clear and decisive words. The right of Negus to sell similar privileges to others is not derived from this recital in the preamble. He has that right independently of the in lenture to sell all that he had not therein granted. He need not give notice of this to his grantee; he sells to him a limited quantity, and may sell and dispose of the surplus as he pleases. The statement was not made to reserve anything to himself, but evidently for another purpose. At the close of the second clause, Amidon agrees to pay his proportion of the cost of repairing the main pipe, with others who may have similar privileges to use the water with him. Amidon being the first grantee, it was proper, in order to make this provision intelligible, that the preamble should state the facts that other similar privileges were to be conveyed, and that when conveyed, each house should bear one part of such expense. This provision for keeping in repair has also a strong bearing upon, and indicates the understanding of the parties that the benefits derived from the conveyance by Amidon were not to be *67diminished by the later conveyances; for it cannot be presumed from doubtful words inserted in a preamble, that Amidon would covenant to keep the main pipe in repair, in connection with other grantees, if the grantor could by increasing the number indefinitely render his grant worthless. This seems to have been the practical construction put upon the agreement by the parties in the lifetime of Negus, as he made similar conveyances to seven persons only, the last of which was made in 1856, and there was sufficient water for all, until the permission was given to Bugbee to take the water.

We think, therefore, the bill can be maintained, if the plaintiff can establish the facts set forth. Demurrer overruled*