Miller against Scolfield, 12 Conn. 335

Bissell, J. In this case, a number of questions are presented for consideration, arising upon the charge of the judge on the circuit. 1. The first involves a construction of the deed from John S. Miller, the grantor of the plaintiff, to John Scolfield, under whom the defendant claims. This deed conveys to Scolfield, his heirs and assigns forever, four acres of land, with the building and implements and appurtenances thereon and thereunto belonging, for carrying on the fulling business.

Then follows those clauses in the deed, upon which the present question arises ; and they are in these words : “ Granting also, by these presents, to said Scolfield, the same privileges reserved to myself and my heirs, in ⅞ deed of land sold to Alexander Rogers, &c.” “ Giving and granting also to said Scolfield, by these presents, the privilege of supplying himself, for the use of said mills, with water, at all times, from the saw-mill pond, whenever it is wanted for carrying on his business, provided the same is not unnecessarily used or wasted ; said Scol-field to have free ingress and egress through the road laid out across or through the grantor’s land to the public highway.” And then follows tha habendum, by which the granted premises and the appurtenances were to be held by the said Scolfield, his heirs and assigns forever, to his and their 'proper use and behoof.

It was contended in the court below, and the claim has been repeated here, that the privilege of taking water from the sawmill pond, is a mere personal privilege to John Scolfield, and does not extend to his heirs and assigns. The jury were instructed, that such was not the legal effect of this deed; but that the privilege in question extended to the heirs and assigns of John Scolfield. In determining whether the construction put upon the deed was a correct one, we are to look at the whole instrument, in connection with the object of the parties, and the facts found in the case.

It is very apparent, that the principal object and subject matter of the grant, was the fulling-mill; and this was to Scolfield, his heirs and assigns. The case finds, that the water of the saw-mill pond had always been used for the benefit of the fulling-mill; and was in fact appurtenant thereto, and essential to its enjoyment. Now, upon this state of facts, can there exist a doubt as to the intention of those parties ?

Can it be, for a moment, supposed, that Scolfield would consent to purchase a fee-simple in the fulling-mill, and yet limit, by his own life, a privilege, without which, no benefit could be derived from his grant? Such a supposition does violence to all probability, and, we think, also, to the plain language of the instrument. In this deed, reference is had, as we have seen, to the deed from John S. Miller to Alexander Rogers ; and the privileges appertaining to this mill are specified ; and they are described as being reserved to Miller, his heirs and assigns.

Now, it could not have been the design of the parties, that any portion of these privileges should be retained by Miller ; and yet, in the granting part of the deed, these privileges are conveyed to Scolfield only; and in this respect, they stand on the same ground as the right in question. Again; the right of way to the granted premises depends upon the same principle. This, too, in the granting part, is conveyed to Scolfield, without words of inheritance. And can it be gravely contended, that Scolfield’s heirs would have no right of way to the lands conveyed by this deed?

They clearly would have none, uuless derived under the grant; for if that were to Scolfield only, the law would imply none after his decease, in favour of his heirs. Again ; as has been already observed, by the habendum, the granted premises are to be held, by the grantee, his heirs and assigns forever. And although it be not the office of the habendum to enlarge the subject matter of the grant; yet the words “ to have and to hold," do often enlarge the estate conveyed in the granting part of the deed.

Indeed, it is not usual, says Judge Swift, to limit and define the estate till we come to the words “ to have and to hold and then it is done, by limiting it to a ceitain person and his heirs forever, or for life, or for a certain number of years. 1 Sw. Dig. 123. Smith v. Manning, 6 Conn. Rep. 289. We think, for these reasons, that the claim of the plaintiff is unfounded, and that (he correct construction was put upon this deed, in the court below. 2. But it is found, that previous to the execution of this deed, the premises had been conveyed to John S.

Miller, jun., the present plaintiff: and we are, therefore, brought to enquire, What is the effect of his quit claim deed? It has been urged, that this deed does not confirm the grant of John S. Miller, sen., except as to the four acres of land, the fulling-mill and implements. It is difficult to see on what grounds this claim rests: why this deed should enure to Scofield’s benefit, as to a part of the granted premises, and not as to the whole. It is to be remarked, that the deed was not to Scolfield, but to John S. Miller, senr., who had already conveyed, with covenants of warranty.

Now, what was the object of this conveyrance ? It undoubtedly was, to save John S. Miller, senr., from his liability on these covenants. There could have been no other object. But these covenants extended as well to the right in question, as to the four acres of land, or any other portion of the granted premises. We are, then, called upon to say, that the intention of the parties was, to save John S. Miller from liablility on a part of the covenants contained in his deed, and to leave him liable on the other part.

This is not only a forced and unnatural supposition, but it contravenes, as we think, the express stipulations in the instrument. The deed of John S. Miller, sen., to Scolfield, is referred to; and the premises are conveyed “ as there deeded." These considerations are entirely conclusive upon this part of the case. 3. R ⅛ made a point in the motion, and it was urged on the circuit, that the lease of Peter Strickland to Jeremiah and John S.

Miller, is to have some effect upon the construction of these deeds; and that, inasmuch as the right of the present grantor to take water from the saw-mill pond, is (here limited to the existence of the saw-mill, he cannot be supposed to have conveyed the right for a longer period. It is observable, that in neither of the deeds before us, is there the slightest allusion to this lease ; nor is there any connection between them.

The claim, then, comes to this, — that the express covenants in a deed may be controuled, by another instrument, to which it does not refer, with which it has no possible connection, and of the existence of which, the grantee may be entirely ignorant. And besides, it should not be forgotten, that the present claim is quite as inconsistent with the construction put upon the deed to Seolfield, by the plaintiff himself, as it is with the construction contended for, by the defendant.

There is no more probability, upon the supposition now put forward, that Miller would have granted the right in question, during the life of Seolfield, than that he would have granted it to him and his heirs. It cannot, surely, be necessary to pursue the argument further. 4. The jury were charged, that the defendant had a right to enter upon the plaintiff’s land, for the purpose of repairing the dam, whenever such repairs were necessary ; but that he was bound to exercise the right in a reasonable manner, doing the plaintiff no unnecessary damage.

And whether he had so exercised the right, was submitted as a matter of fact to the jury. The only remaining question is, whether this part of the charge is sustainable. The jury having passed upon the matter of fact, the whole question turns upon the existence of the right. And this, again, depends upon a reasonable construction of the grant. By this the grantee had the privilege of supplying himself with water from the saw-mill pond, at all times when it should be necessary for carrying on his business. How then, it may be asked, is he to supply himself with water, within the meaning of the grant?

That he would have a right to enter, for the purpose of taking water from the pond, cannot admit of a doubt. Deny him this, and the grant would be utterly nugatory. And are we to hold, that although he may take the water from the pond, yet he may not do those acts which are indispensable to retain the water there, in order that it may be. taken ? Would not this be a narrow construction of the grant, and such an one as the parties never contemplated? The grantee had, by the express terms of the deed, the privilege of supplying himself with water, at all limes, when his business required.

We think the fair construction of this language, is, that he was empowered to do all those acts which were necessary to obtain the supply. Hodgson v. Field, 7 East, 613. And this view of the case is confirmed, by the consideration that the very right now in question was reserved in the deed of the grantor to Alexander Rogers ; and that all the privileges reserved in that deed are fully enumerated, and conveyed in the deed to John Scolfield. We think, therefore, that the case was rightly decided on the circuit, and do not advise a new trial. In this opinion the other Judges concurred. New trial not to be granted.