22 Tenn. 260 | Tenn. | 1842
delivered the opinion of-the court.
In April 1837, James Kennedy and William S. Kennedy, for the consideration of twelve thousand dollars secured by the bonds of Oldham and Mosely to be thereafter paid to them, sold to Oldham and Mosely, ten acres of land • including the mill commonly called the upper mill on White’s creek near Knoxville, with the dam- and appurtenances; gave them a bond to convey to them a title, by deed of general warranty, with certain covenants therein referred to, on the payment to them, of the entire consideration secured as aforesaid; and they put the said O'ldham and Mosely forthwith into the possession and enjoyment of the premises. In February 1838, the complainants were presented by the grand jury of Knox county, for a public nuisance in keepihg up their dam and mill pond, to the
There are other covenants in said deed, and among others one to indemnify Kennedy against one Bell whose lands were overflowed by said pond. The question is in what is granted above, did Morgan intend to covenant against the vis major, the act of God or of the government? Does this arise expressly or by necessary implication? If a vendor of a mill ■ dam and pond intended to give, and the vendee to exact a covenant so extraordinary as that the dam and pond should never in all future time be abated as a nuisance, would it not be expected to be expressed in direct and unambiguous terms? The truth is that when the whole deed is inspected there is no difficulty in understanding this portion of the covenant.
The closing line of the deed calls to run across the pond: so it is obvious from the deed that the pond is not all, perhaps very little of it, included in the ten acres. Morgan continued riparian owner of both, sides of the creek including the pond, and of the land covered by both the creek and pond up to Bell’s line; a part of it overflowed Bell’s land; under such circumstances Morgan says to Kennedy, “although I have not sold you the shores adjacent to the pond, nor the lands covered by it, and am not myself owner of all the land covered by the pond, yet I covenant that said pond shall be and always continue appropriated to your dam and mill at its present height and you may take the soil within a rood of the shores for repairs, and I will indemnify you against Mr. Bell; but then as connected with these covenants, you must raise your dam no
There was under the circumstances of the case nothing extraordinary in the covenant, it was very natural and very proper, and we think there is no difficulty whatever in understanding and satisfying its meaning without any the least reference to protection against the criminal laws for a nuisance. We must therefore reverse the decree of the chancellor, dissolve the injunction in this case and dismiss the bill, but at the mutual cost of the parties.