Pettee v. Hawes, 30 Mass. 323

Pettee v. Hawes

30 Mass. 323 | Mass. | 1832

Shaw C. J.

delivered the opinion of the Court. The Court are of opinion that the second plea in bar is good. It appears that the defendant conveyed to Hezekiah Pettee, through whom the plaintiff claims, several tracts and parcels of real estate, at one and the same time and as part of the same transaction, one of which was a tract of land, part of which has since been conveyed to the plaintiff, and one other part of which was half of a grist-mill and the water privilege appurtenant. Subsequently, Hezekiah Pettee conveyed to Daniel Pettee, a part of the land in question, but no right to the mill, and after describing the premises, adds this, “ reserving all on the westerly side of the pond and stream, with the mill and water privilege.” The grant was of the fee of the land on the easterly side of the brook, and reserving all on the westerly side, and reserving also the mill and water privilege. The effect of this reservation, was to except so much out of the subject matter of the grant. Now we think that the grant of land, bounding on or near a pond and stream, reserving the mill and water privilege, is a reservation of the right of flowing those lands, so far as necessary or convenient, or so far as it has been usual to flow them for that purpose. The raising of a head of water to drive a mill constitutes mainly the mill privilege. But it is this right of flowing the land, of which the plaintiff, who is Daniel Pettee’s grantee and who takes his rights only, now complains as an incumbrance. And it is averred in the plea, that the right thus reserved, in the deed, for the benefit of the proprietors of the said mills, was to the extent of the right in the plaintiff’s declaration mentioned, and this fact is admitted by the demurrer. Without considering what would *327have been the rights of Hezekiah Pettee, the defendant’s first grantee, on the covenants to him, it seems clear that when he parcelled out the estate, granting some portions and reserving others, this mill privilege was reserved; it did not pass to Daniel Pettee, nor to the plaintiff as his grantee ; and as the assignment of the covenants was only co-extensive with the premises granted, as this part of the premises did not pass by that grant, the plaintiff did not become assignee of this covenant and cannot maintain an action upon it. It seems to be conceded, that if Hezekiah Pettee had been the sole owner of the mill, this would have been the reasonable construction of the reservation. But it appears to us to make no difference, whether this mill and water privilege was reserved exclusively to himself, or to himself and his co-tenants. Suppose he had previously granted away the whole mill with the mill and water privilege, no doubt he would be barred from claiming any damage against his grantees, for flowing his other land, to the extent to which it had usually been flowed by himself when owner of the mill. The grant of the mill would be intended and construed to be beneficial, and to carry with it the right of flowing, to the usual height, as far as the grantor had a right, and that must necessarily be, to the extent of his own land. When, therefore, he grants this other land, thus subject to a service or easement, in favor of the mill owners, whoever they may be, and reserves the mill and water privilege, it is very clear that his grantee takes subject to such easement, and the existence of the easement is no incumbrance on the premises granted. It is an exception out of the grant. It seems, therefore, immaterial, whether the grantor himself, or any other person, was owner of the mill, at the time of the grant. A question was made, at the argument, whether this was a covenant that runs with the land, and one upon which an assignee can maintain an action ; but the point on which this cause is decided, has rendered it unnecessary to consider that question.

Plea in bar good.