In May, 1863, one Brown, whose farm adjoined that of the plaintiff, executed to the Buffalo and State Line Railroad Company a deed granting to it, and its successors and assigns forever, the right to enter upon his land “ for the purpose of building and maintaining a rеservón1 for water, and laying down and maintaining an iron pipe or conductor to carry the water from said reservoir to thе water-tanks at the Portland station, and also the right to build and maintain blind and covered ditches to conduct the water to the said reservoir ; the said iron pipe is to be laid at least two feet below the surface of the ground.” The plaintiff, knowing оf the contents of this deed, on the same day executed to the same company a deed granting to it, and its successors and assigns forever, the right to enter upon his land “for the purpose of laying down and keeping in repair an iron pipe or conductor, to carry water to the water-tank near the Portland depot, which pipe are to be lаid at least two feet below the surface of the ground.” The defendant has succeeded to the rights of the grantee in these deeds. At the date of the deeds, there was a spring on Brown’s land, the water of which flowed out of his land on to and across plaintiff’s land in a well-defined, natural channel, which furnished a constant supply of water for plaintiff’s cattle and horses.
After the deeds were given, the grantee excavated a reservoir upon Brown’s land, and collected therein the water of the spring and of the adjacent land ; and it laid down two-inch iron pipe from the reservoir across Brown’s land аnd plaintiff’s land to Portland station. The pipe thus laid down remained until 1871, and during all that time there
Plaintiff’s grant to the railroad is general and indefinite. It does not define or limit the plаce in which the pipe was to be laid, nor specify what water was to be conducted. Hence the surrounding circumstаnces, such as the existence of the spring, the channel over plaintiff’s land, the execution of the deed by Brown, the tоpography of the country, and ■the acts of the parties both prior and subsequent to the grant may be considered for the purpose of learning the intention of the parties, and thus defining and limiting the easement granted. (French v. Hays, 43 N. H. 30.) It is thus made manifest that it was intended by plaintiff’s grant to give the right to lay down pipe to conduct water from the reservoir on Brown’s land over his land to the Pоrtland station, which would otherwise flow in the natural channel above mentioned.
After the grantee had once laid its pipe and, thus selected the place where it would exercise its easement thus granted in general terms, what was beforе indefinite and general became fixed and certain, and the easement could not be exercised in any other place. This is confessedly.so in reference to rights of ways granted in similar terms. (Washburn on Easements, 225, 240; Wynkoop v. Burger, 12 J. R., 222.) And the same rule of construсtion was applied to the right to lay an aqueduct from a spring, granted in general terms, in Jennison v. Walker (
It is clear, then, that the right to lay the pipe under plaintiff’s grant was fixed by the act of the grаntee, and the acquiescence of the grantor to the place taken, and it cannot be exercised in any other place across plaintiff’s land. But why is not the right also fixed for the same reasons as to the size of the pipe, and the quantity of water to be diverted ? I can perceive no reason for confining the operation of this rule tо the mere place where the right is to be exercised. There is the same reason for applying it to the entire right granted. In Bannon v. Angier (
The language used in'plaintiff’s grant shows quite clearly that it was not intended that after the grantee hаd laid down a pipe, it should have the right to enter upon the land to lay down a larger pipe. The right granted was to entеr upon the land, and lay down a pipe two feet below the surface, and to keep that pipe in repair, not to enter upon the
Plaintiff’s aсtion is therefore maintainable, and the order of the General Term must be affirmed, and judgment absolute for plaintiff.
All concur, except Church, Ch. J., not voting; F'olgeb; and Miller, JJ., absent.
Order affirmed and judgment accordingly.