The deed, Swan to Whiting, conveyed to Whiting, in 1812, the saw-mill and all the power of the river that could be made available by the canal as it then was, except so much as was necessary for carrying two sets of stones in Swan's grist-mill and the Gookins cloth-mill, situated on the same canal. The canal and the three mills were on the east side of the river. By the express terms of the deed, Swan retained, out of "the canal water privilege," power for his grist-mill "with two sets of stones." He also retained the surplus, if there was any, over and above "the canal water privilege." Both of the parties in this suit claim under Swan. Neither of them claims under Whiting. Both have no more water power than was left in Swan after his deed to Whiting. In 1820 Swan died, and the situation at that time was the same as in 1812 after his deed to Whiting.
By his will, Swan authorized his executor to sell his real estate. In 1822, Swan's executor conveyed to Kelsea an acre on the west side, "with the privilege of taking sufficient water from said mill-dam and pond to carry a trip-hammer." In 1824, Swan's executor conveyed to Morrison, and at the same time Morrison conveyed to Hamlin Rand, Swan's interest in the mill lot on the east side, *Page 550 "with the grist-mill, mill-dam, and waterfall belonging to said lot." In 1831, Kelsea conveyed to Hamlin Rand the acre and trip-hammer privilege on the west side. After the death of Hamlin Rand, his brother Robert claimed one half of a large number of parcels of real estate, including the land and water rights on both sides of the river, of which Hamlin held the legal title at the time of his death. This claim was compromised and settled in 1843 by two deeds, — one from Hamlin's heirs to Robert of fourteen tracts, then standing in the name of Hamlin, among which were "the tannery land and buildings thereunto belonging, and the mill privilege connected therewith," on the west side of the river, and another from Robert to Hamlin's heirs of a large number of tracts, then standing in the name of Hamlin, among which was "the grist-mill with all the land and privileges thereto belonging." The plaintiffs are to be regarded as the heirs who made the compromise with Robert. The defendants, claiming under Robert, contend that the legal title of half the power of the river passed to Robert by the conveyance to him of the property described in the deed as "the mill privilege." The tannery lot was twenty rods below the dam, and no part of the water-power belonged to that lot. The question is, What was the property described as "the mill privilege"? It was the acre described by the referee as "a narrow strip of land on the west side of the river, extending from seven rods above the dam down the river to the tannery plot, twenty rods below the dam, and containing one acre." "The mill privilege" would ordinarily be the name of something more than soil and rocks. It would generally be understood to include water-power. With no further description, it might include only a hundredth part of the power of the river, and it might include the whole of it. The deed gives neither the bounds, nor any further separate description, of this piece of property; but the list of the fourteen parcels of real estate conveyed by the deed is followed by this clause: "all of said described parcels owned and possessed by said Hamlin Rand at the time of his decease, a reference being had to his deeds for a particular description of each." This incorporates and adopts the deed Kelsea to Hamlin Rand, which conveyed the acre and no more power than the trip-hammer privilege.
It is immaterial in this case whether half of the bed of the river was conveyed or not. This action is not a writ of entry for land, but case for diversion of water. Whether the west half of the bed of the river did or did not pass, in 1822, by the deed Swan's executor to Kelsea, the clause "with the privilege of taking sufficient water from said mill-dam and pond to carry a trip-hammer" was intended by the grantor and grantee as a specific and full description and limitation of the water right conveyed with the acre. "The mill privilege" of the deed of 1843 is not more than the acre and its trip-hammer privilege. The rest of the water-power remains the property of the riparian owners on the east side. The *Page 551 deed taken from Robert by Hamlin's heirs did not lessen their rights, nor enlarge their deed to him. It does not appear that Robert ever had any title except what they conveyed to him in 1843; and they did not convey to him more water-power than a trip-hammer privilege. His claim, and their conveyance to him of fourteen parcels of real estate in settlement of his claim, do not change their conveyance of the trip-hammer privilege into a conveyance of half the power of the river. The case does not present any facts on which judgment can be rendered.
Case discharged.
SMITH and CARPENTER, JJ., did not sit: the others concurred in the result.
The defendants moved for a rehearing.