New-Ipswich W. L. Factory v. Batchelder

3 N.H. 190 | Superior Court of New Hampshire | 1825

Richakdson, C. J.,

delivered the opinion of the court.

It is said by the defendants, that the deed of Charles Barrett passed no right in the raceway, beyond the limits of the land granted. What effect this proposition, if it could be maintained, ought to have upon the verdict, we have not stopped to inquire ; because we are of opinion, that the proposition itself cannot be supported.

It is well known, that in the conveyance of real estate some things have always been held to pass as incidents to other things. These incidents have been divided into several species. Thus some have been termed regardant, some appendant, and some appurtenant. Coke Litt. 307 a.—Com. Dig. “ Grant,” E. 11.—5 B. & P. 109. The term “ re» “ gardant” denoted the relation between a villeine and the manor, to which he belonged. Lilt. see. 184. — Coke Litt. 120, aSpb.

An appendant is that, which beyond memory has belonged to another thing more worthy. One thing is said to be ap-pendant, when it has been immemorially connected with another. Com. Dig. "Appendant” A—7 Mass. Rep. 8—11 John. 498.—Coke Litt. 121, b. and 122, a.—17 Mass. Rep. 447-8.

An appurtenant is that, which belongs to another thing, but which has not belonged to it immemorially. 1 Ventris 407.—Coke Litt. 121, b. and 122, a.—Moore 682.

But it is unnecessary, in this case, to examine minutely the distinctions between the several species of incidents ; because the only question is, whether a right to have the Water pass uninterrupted, through the whole extent of the raceway, was not granted in Barrett's deed, as an incident to the mill granted ? At the time, when Barrett made the grant, the raceway had been constantly used for sixteen years to conduct the water from the mill, standing where the factory of the plaintiffs now stands, and was necessary for the convenient use of the mill. Barrett, at the same time, owned all the land, through which the raceway extended. And as both these parties claim under Charles Barrett, it seems to us, that as between them this raceway is to be considered as the natural channel of the river. It must be presumed to have been made lawfully by those, who had a right to make it, and to have been made as an appendant to the mill, and as it had been used as such for sixteen years, it cannot admit a question, that the right to have the water low off in it uninterrupted passed with the mill, as an inci-«lent. In the case of Nicholas vs. Chamberlaine, [Cro. James 121,) Orukc sap, “it ivas held by ail the court, upon de* u rnurrer, that if one erect a house, and builds a conduit “ thereto in another part of his land, and conveys water by “ pipes to the house ; and afterwards sells the house with “ the appurtenances, excepting the land, or sells the land to “ another, reserving to himself the house, the conduit and “ the pipes pass with the house ; because they are necessary “ and quasi appendant thereto. And he shall have liberty by law to dig in the land for amending the pipes, or making “ them new, as the ease may require. So it is, if lessee “ for years of an house and land erect a conduit upon the “ land, and, after the term determines, the lessor occupies “ them together for a time, and afterwards sells the house « with the appurtenances to one, and the land to another, “ the vendee shall have the conduit and pipes, and liberty u to amend them.”

The rule here laid down seems to us to be founded m sound reason and good sense, and to apply, in all its force, to the case now before us. A raceway may he as necessary an appurtenance to a mill to conduct the water from it, as a canal to conduct to it the water necessary to woik it. In many cases a severance of the appurtenance from the thing, to which it is appurtenant, would render both useless. For aught we know, that may be the case in this instance. But however that may be, the case finds, that the raceway was necessary for the convenient working of the mills. Shepherd, in his Touchstone, 89, says, “ by the grant of mills the waters, “ flood-gates, and the like, that are of necessary use to the “ mills, do pass and we entertain no doubt, that the raceway, in this ease, passed by Barrett's deed, as an appurtenant to the mill.

Judgment on the verdict,