In the case of Seavey v. Jones,43 N.H. 441, the court, while holding that under the terms "privileges and appurtenances" all the rights and easements incident to the land as situated on one side of a river, and also all the rights and easements which had been acquired by prescription or grant, passed, refused to permit the plaintiff to show that the defendant at the time of the purchase was actually using the whole water of the stream, and claiming a right so to do. This seems to limit the doctrine in regard to easements existing and apparently in use at the time of the sale to such as the owner could rightfully convey, and excludes from the covenant of warranty those easements and privileges connected with the property to which the grantor had not acquired any right.
On the authority of this case, ad well as on general principles, I hold that the right to use the water was not included in the covenant of the defendant.
LADD, J. The action is upon the deed for a breach of the covenant therein, and not case for deceit in representing the spring and aqueduct to be appurtenant to the premises conveyed when they were not. If the aqueduct and stream of water running therein had in any way been annexed to the land conveyed so as to constitute a legal appurtenance thereof, they of course passed by the deed under that description, as against the owner of the land on which the spring is situated and everybody else, and there has been no breach of the covenants. If they had not in any way become a legal appurtenance of the premises, then the deed does not purport to convey them, and of course a diversion of the water by the owner of the land on which the spring is situated would constitute no breach. I think that action cannot be maintained on the facts stated.
Case discharged. *Page 428