Vermont Central Rail Road v. Estate of Hills, 23 Vt. 681

Vermont Central Rail Road v. Estate of Hills

23 Vt. 681 | Vt. | 1851

By the Court.

It is very obvious, that oral evidence of con. versations between the parties, previous to the execution of the deed, cannot, in a court of law, be allowed to control the deed. The party must be content to abide by the deed, as he gave it. That is general, without condition, or reservation. We think it must have *685the effect to convey the land, with all the privileges of drawing water from other portions of the grantors’ land, which were then in use, as appurtenant to the land. It would be wonderful, if this were not so, in ordinary cases of deeds of land with artificial ponds and aqueducts. It is admited, such a right is acquired by fifteen years use. If conveying the land would’not convey the right, it would revert to the dominant proprietor, even after he had granted it away, or lost it by adverse use, which would be absurd. And even if the owner of the land had acquired no perfect right, it seems to us, that a general conveyance of the land, with all its privileges and appurtenances, the acqueduct being in use, would bind the grantor to defend the title to it, if he gave covenants of warranty, &c. And if so, then clearly, when he owned the spring, the right will pass by the deed. The case of Manning v. Smith, 6 Conn. 289, is certainly very much in point, and if it were to be regarded as full authority, must certainly govern the present. But it seems to us opposed to the early English cases, and to have been decided upon too narrow ground, and not fully consonant to the soundest principles.

And the grantor, in the present case, having diverted the entire water course, it is not for him to say, that the plaintiffs did not desire to use it, or that they have suffered no detriment. They had the right to insist, that it should flow in its accustomed artificial channel, and any diversion, although not upon their land, is a disturbance of their rights, and in contemplation of lavy, affords a cause of action, the same as diverting the water from a natural stream subjects the party to an action, at the suit of all the proprietors below.