privilege existed within the boundaries of the land.1 A State grant of a mill-site with no mill or dam in existence confers no right, unless expressly granted, to flow adjoining State lands as against subsequent purchasers, although such purchasers acquire title after the erection of the dam, under patents referring to a map which represents their lands as flowed to the extent claimed.2 § 304. Grants relating to water may include a certain quantity of the water itself, having reference to its bulk or weight, or to the quantity which will pass through an aperture of known dimensions in a certain time,3 or it may be of such water-power as is necessary to propel certain machinery. In the latter case, no property is acquired by virtue of the grant in the corpus of the water; others are not deprived of the right to use it in such manner as does not impair the power; nor is it necessary that it should be annexed to a mill or limited in location. Rights of water thus conveyed are distinct and substantive subjects of grant, and, although in their nature appertaining to land, they may exist without any restriction as to their use in connection with the land granted, or any other designated parcel, and stand precisely as if granted by deeds containing no conveyance of land. If the right is granted in a single deed to build a dam on the grantor's land, to enter for repairs, and to flow the grantor's land to a specified point, the privilege of flowing may be exercised independently by a dam erected on land other than the grantor's. If land is granted with the right, should it become necessary, to erect a dam on the land of the grantor, in order that the grantee may have "the best possible use of the water of a stream for running machinery," the dam need not be maintained at the place where it is first erected, but 1 Pray. Great Falls Manuf. Co., 681; Society v. Holsman, 1 Halst. Ch. 38 N. H. 442. 2 Colvin v. Burnet, 2 Hill, 620. 3 Canal Co. r. Hill, 15 Wall. 94; Bardwell . Ames, 22 Pick. 333. 4 Mayor v. Commissioners, 7 Penn. St. 348; Schuylkill Navigation Co. v. Moore, 2 Wharton, 477; Vermont Central Railroad Co. v. Hills, 23 Vt. 126. 5 Hurd v. Curtis, 7 Met. 94, 114. 6 De Witt v. Harvey, 4 Gray, 486; Pratt . Lamson, 2 Allen, 275; Schuylkill Navigation Co. v. Moore, 2 Whart. 477. 7 Kilgore v. Hascall, 21 Mich. 502. the grantee is at liberty to erect and maintain the dam upon his own land.1 A conveyance of all the water of a river between certain points "for the purposes and use of machinery or ditches, or for any other uses," does not convey the land of a mill-site on the stream.2 or 3 § 304 a. "A grant of a watercourse in law," says Jessel, M. R., "especially when coupled with other words, may mean any one of three things. It may mean the easement or the right to the running of water, it may mean the channel-pipe or drain which contains the water, and it may mean the land over which the water flows. What it does mean must be shown by the context, and if there is no context, I apprehend that it would not mean anything but the easement, a right to the flow of the water." A grant of a "pool," or "gulf," or of a "pond" passes the land which is covered with water. So a grant of a "well," or "spring," "wharf" is effectual to pass the soil as well as the water. Upon the sale of a division of a canal belonging to the State of Indiana, "including its banks, margins, towpaths, side-cuts, feeders, basins, right of way, dams, waterpower, structures, and all the appurtenances thereunto belonging," certain adjoining parcels of land belonging to the grantor, which were necessary to the use of the canal and water-power, and were used with it at the time, but were not clearly described by the above terms, was held to pass by the conveyance. A lease of a riparian lot "with all the improvements thereon made" will cover an addition by filling and natural accretion, which the lessor might, by statute, have lawfully made at the date of the lease." 1 Barber v. Nye, 65 N. Y. 211. 2 Robinson v. Imperial Silver Min ing Co., 5 Nev. 44. 3 Taylor v. St. Helens, 6 Ch. D. 264, 271. See Jackson v. Halstead, 5 Cowen, 216; Egremont v. Williams, 11 Q. B. 707. + Co. Lit. 5; Goodrich v. Eastern Railroad, 37 N. H. 149, 164. 5 Johnson v. Rayner, 6 Gray, 107; Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159. A sale of a "pier," or "wharf," carries the right of wharf- 6 Sheets c. Selden, 2 Wall. 177. § 305. If a "mill" be granted, reserved, or devised,1 either with or without the word "appurtenances," it includes not only the mill itself, but the land under it and so much of the land adjacent to it as is necessary to its use or commonly used in connection with it; also, the fixtures used in operating the mill, including its machinery, with the bars and chains, in use or in their appropriate position at the time of the conveyance, and the water privileges appurtenant to the mill as corporeal hereditaments. But this right to continue the flooding of the grantor's lands to the same extent as when the grant was made, does not apply to grants of land from the government. A grant of land, on which a mill stands, passes a raceway which is necessary for the convenient working of the mill, but not the right to dig a new trough on the grantor's adjoining dry land for the purpose of conducting water to the mill, although the deed purports to convey "the right of digging, damming, and flowing for the accommodation of said mill." So the con 1 Bacon v. Bowdoin, 22 Pick. 401; Webster v. Potter, 105 Mass. 414; Blaine v. Chambers, 1 Serg. & R. 169. See Harlan v. Moore, 9 Watts, 360. 2 Furbush v. Lombard, 13 Met. 109; Farrar v. Cooper, 34 Maine, 394; Esty v. Baker, 48 Maine, 495; Crosby v. Bradbury, 20 Maine, 61; Whitney v. Olney, 3 Mason, 280; Auburn Congregational Church v. Walker, 124 Mass. 71; Leonard v. White, 7 Mass. 6; Van Horn v. Richardson, 24 Wis. 245; Lanoue v. McKinnon, 19 Kansas, 408. The same rule applies to exceptions in a grant. Moulton v. Trafton, 64 Maine, 222. 8 Farrar v. Stackpole, 6 Greenl. 154; Lampman v. Milks, 21 N. Y. 510; Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57. 4 Blake v. Clark, 6 Greenl. 436; Maddox v. Goddard, 15 Maine, 218; Baker v. Bessey, 73 Maine, 472, 478; Seavey v. Jones, 43 N. II. 441; Miller v. Miller, 15 Pick. 57; Pettee v. Hawes, 13 Pick. 323; Prescott v. White, 21 Pick. 341; Crittenden v. 5 Field, 8 Gray, 621; Hapgood v. Brown, 5 Wilcoxon v. McGehee, 12 Ill. 381. num 4 veyance of "ferry ways," which are permanent structures, includes the land under them and used with them;1 and the grant of a "water ditch" will include another water ditch by which it is fed and without which it would be useless.2 The term "mill-site" is sufficient to pass the mill, the waterpower immediately connected therewith, and the right to use it by the erection of a dam;3 but the grant of the "liberty" or "privilege" of using the waters of a stream,* or the conveyance of a right of way over land for a mill-race,5 is the grant of an easement only, and not of a fee. The grant of a "dam" includes an easement in the mill-pond. While a conveyance of land transfers whatever is properly and lawfully appurtenant to the subject of the grant, it does not convey an easement, such as the flowage of a stranger's land, which has no valid existence as such, although it may appear, as matter of fact, to be attached to the land; and what the deed does not purport to convey, the ordinary covenants of warranty do not warrant.7 Where certain land was conveyed by metes and bounds, without mention of a mill, dam, or water privilege of any kind, and the grantee had previously constructed a mill and dam upon the land, which flowed other land of the grantor, it was held that the 1 Gerrish v. Gary, 120 Mass. 132. 2 Donnell v. Humphreys, 1 Mon. 518. 3 Stackpole v. Curtis, 32 Maine, 383; Curtis v. Smith, 35 Conn. 158; Wood r. Sawin, 4 Gray, 322; Le Roy v. Bradley, 4 Paige, 77; Tabor v. Bradley, 18 N. Y. 113. But not a reservoir dam above, belonging to the grantor, but not within the boundaries named in the deed. Brace v. Yale, 4 Allen, 393. See, however, Elliott v. Shepherd, 25 Maine, 371. The term "mill-dam" does not include a dam built at the outlet of a lake to raise the waters for purposes of navigation, although used to propel mills. Arimond v. Green Bay Canal Co., 35 Wis. 41. A river bank, or a structure built to support a break in such bank, is not a dam so as to render a person who injures it liable under a statute which provides a penalty against those who injure dams, unless such injury draws off the water of a mill-pond. People v. Gage, 23 Mich. 93. See Burnham v. Kempton, 44 N. H. 78; Colwell v. May's Landing Co., 4 C. E. Green, 245. Hadley v. Hadley Manuf. Co., 4 Gray, 140; Jamaica Pond Aqueduct Corporation v. Chandler, 9 Allen, 159. 5 Miller v. Vaughn, 8 Oregon, 333. 6 Maddox v. Goddard, 15 Maine, 218; Sabine v. Johnson, 35 Wis. 185; Hutchinson v. Chicago Railway Co., 37 Wis. 582, 604. 7 Green . Collins, 86 N. Y. 246; Adams v. Conover, 87 N. Y. 422; Brace. Yale, 4 Allen, 393; Illinois Central Railroad Co. v. Wren, 43 Ill. 77. grantee did not acquire the right of flooding the grantor's land, it not appearing that the grantor knew of the existence of the mill or dam when the deed was executed.1 § 306. The grant of water easements carries with them by implication, as secondary or subsidiary easements, everything that is beneficially necessary or incident to the grant, whether mentioned or not as "privileges," "appurtenances," or the like.2 A distinction has been made between an easement reserved in land granted for the benefit of the land retained, and an easement granted in other land of the grantor for the benefit of that conveyed, it being intimated that there might be implied a grant of an easement under circumstances where there would be held to be none of a reserved easement. But there must be a reasonable necessity for such an implication, mere convenience not being enough, and the use must be seasonable. What will pass as impliedly appurtenant to the easement granted is a question for the jury. Of two constructions that will be selected which gives to such appurtenant privileges the more convenient and reasonable mode of enjoyment.8 The grantor will have a right to elect, where there are several modes of use or enjoyment, in default of which the grantee may choose. The use of such an appurtenant right will 1 Tabor v. Bradley, 18 N. Y. 109. 2 Pomfret v. Ricroft, 1 Wms. Saund. 321, 323, and note 6; Hodgson v. Field, 7 East, 613, 622; Hunchliffe v. Earl of Kinnoul, 5 Bing. N. C.1; Osborn v. Wise, 7 C. & P. 761; Dodd v. Burchell, 1 H. & C. 118; United States v. Appleton, 1 Sumner, 491, 501; Grant . Chase, 17 Mass. 443, 448; Hazard v. Robinson, 3 Mason, 272, 276; Whitney v. Olney, 3 Mason, 280; Kent v. Waite, 10 Pick. 138; Oliver v. Dickinson, 100 Mass. 114, 117; Hollenbeck r. McDonald, 112 Mass. 247, 250; Rackley . Sprague, 17 Maine, 281; Maddox v. Goddard, 15 Maine, 218; Wyman v. Farrar, 35 Maine, 64; Hammond v. Woodman, 41 Maine, 177; Pickering v. Stapler, 5 Serg. & R. 107; Swartz v. Swartz, 4 Penn. St. 353. That a grant of land includes rents for an easement to flow the granted premises, see Pollock v. Cronise, 12 How. Pr. 363. 3 Johnson v. Jordan, 2 Met. 234. 4 Brigham v. Smith, 4 Gray, 297; Leonard v. Leonard, 2 Allen, 543; Pettingill v. Porter, 8 Allen, 1; Parker v. Bennett, 11 Allen, 388; Oliver v. Pitman, 98 Mass. 46. 5 Nichols v. Luce, 24 Pick. 102; White v. Leeson, 5 H. & N. 53; post, § 362. 6 Tomlin v. Fuller, 1 Ventr. 48. 7 Hall v. Benner, 1 Penn. 402. 8 Morris v. Edginton, 3 Taunt. 24; Dand v. Kingscote, 6 M. & W. 174. 9 Holmes v. Seely, 19 Wend. 507. |