Seavey v. Jones

43 N.H. 441 | N.H. | 1862

Sargent, J.

The plaintiff does not complain in this case that he has been interrupted in, or deprived of some privilege of flowage, use of water and repairing of dam connected with his land or mills. The only breach of covenant complained of is, that Andrews owned land on the other side of the river, and a part of said water-power and still owns the same. Unless that fact constitutes a breach of the defendant’s covenants, then the plaintiff has no case, and unless the defendant’s deed is to be construed as warranting the right to the whole use of the stream and waterpower at that place, there has been no breach.

Now the deed does not certainly in terms warrant any such entire and exclusive right thus to use this water-power, nor do we think that any such construction is called for or would be warranted in this ease. The defendant conveyed to the plaintiff “ one undivided half of a tract of land in Bradford, on the west side of Warner river, with the saw-mill, clothing-mill and carding-machines therein, with a privilege of flowage, use of water and repairing of dam, to have and to hold with the privileges and appui’tenances to the same belonging. There is simply an enumeration of the rights and privileges which were to pass by the deed, as there was of the buildings on the land, all of which would have passed as well without any such distinct enumeration as with it. We do not understand by this expression that it was intended as the plaintiff claims, to convey the land and mills with all the privileges and appurtenances belonging to both, and then an additional and distinct grant of the privilege of flowage, use of water, &c., as rights which would not pass by, or be included in the other terms of the grant. The terms used do not indicate any such intention. The land is conveyed with certain mills thereon, and with certain privileges, but neither of them need to be particularly described in order to pass by the conveyance, as they all would have passed as appurtenant. If any other rights had been intended, they would of course have been particularly described. The deed seems plain upon its face, and without any ambiguity, either latent or patent, and the evidence offered was incompetent. So far as it tended to show that any different contract from the one in writing had been made, before the execution of the deed, it was immaterial, and so far as it tended to show that the contract, at the time of the execution of the deed, was different from that contained in the deed, it was inadmissible as tending to contradict the written instrument.

If the plaintiff' was induced by fraud to accept a deed of something less than he purchased, he should seek his remedy in some other way than upon his deed. If the deed is wrong by mistake, it should be rectified. But if, after he had bargained for one thing he was persuaded to change that contract, and when the writings were made he only bought such rights of flowage, &e., as were connected with the land and mills, instead of the whole waterpower of the river, then he has no one to blame but himself, and he has got all he finally purchased, and he can not maintain this suit any more than a grantee, under a quitclaim .deed of a farm, could maintain covenant broken against his grantor, upon his deed, on account of some old incumbrance that had existed before the grantor ever owned it, on the ground that the grantor had told him that he owned the farm free from any incumbrance.

A different question might arise if it was claimed here that the defendant did not own any right of flowage, or of using water or of repairing dam, as incident to or connected with the land or mills granted ; for although here is no distinct and separate grant, yet the language would amount to a covenant that there was a privilege of flowage, use of water, &c., connected with the land or mills or both, which would pass by the conveyance. But that question does not arise.

We think all this deed can be construed to convey would be the right of flowage, use of water, &c., the right to use such portion of the stream and water-power as would be incident to the land, as bounded on the river, and such as were incident to or had become connected with the mills conveyed, and including not only those which were originally incident to the land and mills, but all such as had been acquired' by grant or prescription by the defendant or his grantors before the conveyance to the plaintiff. Peaslee v. Gee, 19 N. H. 273; Sanborn v. Clough, 40 N. H. 316, and cases cited; Dunklee v. Wilton Railroad, 24 N. H. 489; Pray v. Great Falls Co., 38 N. H. 442; Thompson v. Banks, 43 N. H., post.

As there is no complaint here that all those rights have not been enjoyed by the plaintiff, without interruption, there must be

Judgment for the defendant.