Hoyt vs. Carter, 16 Barb. 212

Harris, J. There can be no doubt, I think, that when Wis-wall, acting on behalf of the estate of Morgan, conveyed to Warren the premises now owned by the plaintiff, it was the intention of the parties to that conveyance to secure .to the owners of the mill, the use of the water and the right to divert it in the manner in which it was then conducted from the dam to the mill. This is the clear legal effect of the reservation in the deed. It became binding upon the grantees and their assigns as an implied covenant.

As against these parties, the owners of the mill secured to themselves and their assigns .the right to use the water in the manner stipulated in the reservation. (Case v. Haight, 3 Wend. 632.) The plaintiff had actual as well as constructive notice of this right, for in both his deeds from Cushman and his associates, the resérvation is inserted in the same terms in which it is made in the _ * ¡I grant from Wiswall to Warren.

It is worthy of remark, too, that these deeds were executed long after the title to the water privilege, if any was acquired by the release from Van Eensselaer, had become vested in the plaintiff’s grantors. Whether it was so in fact or not, it is quite evident that the parties understood, when these deeds were executed, that the owners of the mill had the right to divert the water in the manner specified in the deeds. The grantors made no claim to the water, and therefore reserved it in their deeds, to prevent any liability upon their covenants of warranty. B.

Tallmadge Cushman, too, was careful, in his deed to the plaintiff, to convey only such interest in the land described as had been acquired by his grantors, under their deeds from Warren and Van Rensselaer. There is nothing in any of the deeds under which the plaintiff claims, which amounts even to an assertion of title to the water by his grantors. On the other hand, there is a distinct assertion of the right to divert the water for the purposes of the mill, in the deed from Wiswall to Warren.

That right is again asserted in the conveyance from the heirs of Morgan to the defendant in 1838; and, in the deed from the plaintiff himself to the defendant, executed on the 2d of January, 1842, he reserves to the owner or occupant of the water power, substantially the same rights as had been reserved to the owners of the mill in the deed he had received the day before.

Taking into consideration, as we may properly do, the condition of the property and the circumstances of the parties, when this deed was executed, in order to ascertain what was intended by the reservation, it cannot be doubted that it was the understanding and intention of the parties to this deed that the grant should not be construed as a conveyance of the right to the water, that right being already claimed and then exercised by the defendant. But it is said that in the original grant of the land to Schuyler in 1794, Mr.

Van Rensselaer reserved the water in question, and that he continued to be the owner of the stream until 1837, when he conveyed it to Cushman and his associates, through whom the plaintiff acquired title. That the reservation in the deed to Schuyler embraced the stream in question cannot be denied. That Van Rensselaer or his grantees might lawfully have taken possession of it, at any time before his right had become barred by the lapse of time, is equally certain.

But for nearly thirty years before the release to Cushman and his associates, there had been an uninterrupted enjoyment of this stream in the particular manner in which the defendant now claims the right to use it, by those from whom the defendant derives title. This enjoyment was open, notorious, and exclusive. Such an enjoyment is sufficient of itself to support a title. In analogy to the statute of limitations the law authorizes a grant from the real owner to be presumed without other proof than such actual and undisturbed enjoyment. “I take it,” said Lord Ellenborough, in Bealy v.

Shaw, (6 East, 208,) “ that '20 years’ exclusive enjoyment of water, in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of parliament.” The doctrine is, perhaps, still more accurately settled by Best, as follows : “ Acting partly on the principle, that if ancient grants and acts had been drawn in question in the lifetime of the parties to them, they might have shown the truth of the matter, but chiefly for the furtherance of justice and the sake of peace, by quieting possession, the judges attached an artificial weight to the possession and user of such matters as lie in grant, and in process of time, established it as a rule that 20 years’ adverse and uninterrupted enjoyment of an incorporeal hereditament, uncontradicted and unexplained, was cogent evidence from which the jury should be directed conclusively to presume a grant, or other lawful origin of the possession.” (Best on Presumptions of Law and Fact, 102.) In Magor v.

Chadwick, (11 Ad. & Ellis, 576,) it was held that the same rule was applicable to water flowing through an artificial channel. But it is said, that Morgan, through whom the defendant derives his title, was not in a position to acquire any right, as against the original owner, by adverse possession and user. It is true that Morgan took the premises upon which the mill was erected, subject to the conditions, covenants and reservations contained in the deed from Van Rensselaer to Schuyler.

So far as those conditions, covenants and reservations affected the land he purchased of Schuyler, he undoubtedly was estopped from setting up an adverse possession, as against Van Rensselaer or his grantees.- He held in subserviency to the rights and privileges reserved to the original grantor. But, in respect to the premises not embraced in his deed, he owed no such allegiance. Like any other stranger to Van Rensselaer’s title, he was at liberty to acquire the legal title to the water power by adverse enjoyment, or in any other lawful mannerr.

The facts in this case are abundantly sufficient to establish an adverse enjoyment of the water by the defendant and those under whom he holds, for the requisite peridd. They also tend very strongly, I think, to show that the possession had in fact Some legal origin. As early as 1822, Morgan expended $1800 in the construction of a stone dam in the place of the log dam, which had become so much decayed as to require rebuilding. At the same time, he reconstructed the aqueduct at very considerable expense.

It is not easy to account for these large expenditures upon the principles which ordinarily govern the conduct of business men, without supposing that Morgan thought, at least, that he had a legal right to use the water in the particular manner for which he had thus, at so great expense, provided. The careful reservation of the use of the water in this particular manner, in the deed of 1829, was also an unequivocal and public assertion of a claim to such right. The grant of the right, with a covenant warranting the title, in 1838, was a still more emphatic assertion of title.

That there has been an exclusive and notorious enjoyment of the water for more than twenty years, is not in fact disputed. That this enjoyment was accompanied with such acts of ownership and claim of title as are sufficient to constitute an actual ouster and the occupation adverse, is also established. That there was nothing in the relation in which the defendant, or those through whom he derives title, stood to Van Rensselaer and his grantees which should preclude him from availing himself of this adverse enjoyment, has also been seen.

The inferences to which these facts lead, stand wholly unrebutted by any contrary evidence. A case is therefore presented, in which, if the cause had been tried with a jury, it would have been the duty of the court to direct the jury “to presume a grant or other lawful origin of the possession.” Taking the. place of the jury, as I do, it is my duty to act upon the same presumption. Having come to this conclusion, it is unnecessary that I should consider the other questions discussed upon the trial.

Assuming that the release of Van Rensselaer, executed in 1837, was intended to operate as a grant of the stream of water, and that it did, in fact, operate to convey all the interest of the grantor in the water, it did but vest in his grantees, and, through the subsequent deeds, in the plaintiff, -such title as Van Rensselaer had at the time he executed .the release, and that title had already become barred by adverse possession. The complaint must therefore be dismissed with costs. Judgment accordingly. N. B.

This cause was tried at the Rensselaer circuit in January, 1851, without a jury, when the foregoing opinion was delivered. The plaintiff having appealed, the cause was argued before the general term in the third district, Parker, Wright and Harris, Justices, in December, 1852; and at the February term, 1853, the judgment was affirmed.