37 N.H. 149 | N.H. | 1858
It may be assumed, that, by the release of September 8, 1843, executed by two of the plaintiffs, and the assent of the other two to the arrangement, with the defendants, as therein expressed, the Eastern Bailroad was licensed, or otherwise authorized to maintain and use their bridge as it then was, and were also empowered to modify the structure at any future time, in any way that the purposes of the corporation might require. No question is made, and there is perhaps no ground for raising a question, that the change in the character of the structure, from a bridge, supported on piles, to a solid embankment of earth, was such a modification of the structure as to come fairly within the meaning of the terms employed in the release. The release acknowledges the receipt of one hundred and forty-five dollars as the consideration paid therefor; and it contains, in addition, a recital in the preamble, that that sum, it was agreed, was to be received in full for all damages which had been occasioned by the construction of the bridge, and for any future damages which might arise from a modification of it. There is, however, a provision contained in the body of the release, that if the present structure shall be so altered as to increase the damages, by diminishing the quantity of water in the mill-pond, or impairing its efficiency, the plaintiffs are not to be prejudiced in their further claim for
Assuming, then, for the present, that the authority of the defendants to make the alteration is to be found only in the transaction of September, 1843, upon the facts stated, it is manifest that the plaintiffs may have sustained the additional damages contemplated. Their mill is operated mainly by tide-water. The supply of water received into the pond at each flood is exhausted by operating the mills upon it at each ebb. It is the right of the plaintiffs to operate their mill until the pond is drawn' down to a designated point; and this it is stated usually occurs at about half tide. They may then be required to suspend. It is obvious, therefore, that any cause which has the effect to contract the capacity of the pond, thereby diminishing the volume of water to be discharged during the ebb tide, must have the effect to abridge the time they may have the right to run their mill at each ebb, and thus to a greater or less extent impair its value.
There can be no doubt that the solid embankment, in place of the support by piles, diminishes the capacity of the pond and the volume of water; whether or.not to an appreciable extent, and to the damage of the plaintiffs, are
By their deed to the Portsmouth and Concord Railroad of the 8th of May, 1849, they released and quitclaimed a portion of the mill-pond described by definite boundaries. The release was executed before the acts complained of; and consequently, so far as those acts were confined to the limits of the premises released, the plaintiffs have no right to compensation for the loss of the water of the pond to the extent of those limits, unless it be in virtue of some exception or reservation to that effect, contained in the deed. Under this deed the grantees — the Portsmouth and Concord Railroad — as to these plaintiffs are to be considered the owners in fee of the territory included within the boundaries of the premises released, and they embrace, with other land, that also upon which the bridge stood as it was then constructed. The quitclaim by the plaintiffs of all right to a portion of the pond, marked by definite boundaries, leaves them at least no ground upon which to question that the party to whom they have released is entitled, as the owner, to occupy and enjoy the land in as full and ample manner as in the case of any owner of the fee under a deed of warranty, unless restrained by some provision contained in the deed. The description is of a part of the mill-pond. By the term ‘pond,’ the land covered with the water of the pond passes. In Co. Lit. 5, it is said, “if a man grant aquam suam, the soil shall not pass; but by the name stagnum — a pool, the water shall pass, and the land also. So gurges — a gulf, is water and land; and therefore by grant thereof by that name the soil doth pass.” The word pond is as effectual to pass the soil as pool or gulf.
The question, then, to be considered is, whether the release from the plaintiffs to the Portsmouth and Concord Railroad contains any provisions limiting the rights which ordinarily attach upon a conveyance in fee, in the use and enjoyment of the land conveyed, and restraining them from filling up that portion of the pond occupied by the bridge. If they are not restrained, their grantees — the defendants — are not. The clause in the deed, which, it is claimed by the plaintiffs, amounts to such restriction, is in these words: “ Saving, excepting and reserving all rights, titles, interest and privileges which have been heretofore by us, or any or either of us, conveyed to said Eastern Railroad.” The rights and privileges here intended must be understood to be the right to maintain the bridge, and the right to modify it in any manner which the purposes of the corporation may require, upon making compensation to the plaintiffs for the actual damages. These rights, it may be conceded, had been conveyed by the plaintiffs to the defendants, and were thus within the terms of the exception; and the Portsmouth and Concord Road were consequently restrained from any use or enjoyment of the premises which would violate or impair the rights reserved to the Eastern Road. But they would be restrained no farther. These rights merely constituted an easement, and the Portsmouth and Concord Road took the estate subject to it. They were at liberty to devote
But if the Portsmouth and Concord Road should be held to be restrained from making the embankment, as against the Eastern Road, because it would be inconsistent with the enjoyment of the easement, still the plaintiffs have no claim for compensation, so far as relates to acts confined to the land released, upon other grounds, arising from the nature of the exception.
If any right is reserved to the plaintiffs under the clause in question, it is either because it in effect excepts some part of the thing granted from the operation of the grant, so that it does not pass by the demise — thus constituting a technical exception in the deed — or because it creates and reserves to the grantor a new right, not before in esse, and not a part of the thing granted, but springing from it, like rent or an easement reserved, and thus constituting a technical reservation.
If the clause, then, is to have the effect to retain to the plaintiffs, as against the operation of the quitclaim, the right to recover damages for filling up the pond beneath the bridge, it must be either because the land covered by the bridge is intended tobe excepted'in the use of the terms, — 1 excepting the rights, titles, interest and privileges conveyed to the Eastern Hoad’ —thus giving to the clause the character of a technical exception, exempting this land from the demise, or because it creates a new incorporeal right in the grantors, arising out of the land, not before in esse, like rent reserved, the easement of a way, or the like; and which, in this case, can be only the rights to modify, maintain, and use the bridge so modified. Either construction is alike inadmissible. To construe
The boundary of the premises is described as the northerly side line of the bridge. By this must be understood the bridge as it was at the time of the conveyance. It is