The main question in the cause, is as to the true meaning and effect of the conveyance from Van Auken to the plaintiff, or which is equivalent thereto, the effect of the deed from Abel French, Sen., to Van Auken.
The reservations, conditions, and covenants contained in the lease from Ten Broeck to Bullock, are made parts of the deed from A. French, Sen., to Van Auken, and of the latter to the plaintiff, and must be construed as I apprehend in the same manner as if the language of the lease in these particulars had been incorporated into those deeds respectively. *Page 105
Such is the legal inference from the reference in those deeds to the lease in question, (4 Wend, 374.) and the obvious import of the terms adopted by the parties.
The premises are conveyed to Van Auken, "subject to a rent of five bushels of wheat, one third part of a load of wood, and to such other covenants, reservations, and conditions, as arementioned in the deed to Ten Broeck." The reservations as to the rent and wood are placed upon the same footing with the covenants, conditions, and reservations in the lease, and are all adopted by the parties in presenti, as parts of the contract then made.
The exception in the lease above mentioned is in the following words: "Saving and always excepting to the said parties of the first part, out of the present grant and release, all mines and minerals that now are or may be found within the premises hereby granted and released, and all the creeks, kills, runs and streams of water." If the exception had stopped here, there probably would be no difference of opinion as to its construction. Two distinct subjects, mines and water are referred to, and both are excepted by the same general terms from the operation of the grant. The exception then proceeds to a new subject, — "and so much ground within the same premises, as the grantor may think requisite and appropriate at any time hereafter, for the erection of works and buildings for the working of said mines; also such wood and timber, as they may think proper for the working said mines, with liberty to dig through and use the ground for either of said purposes, to pass and repass with horses, c., through the premises and lay out roads therefor." The latter clause of the exception above quoted, unquestionably refers to mines as the principle subject with which they are connected, and to which they are limited. The language is, so much ground, also such wood, as may be thought necessary for mining purposes." But it is not perceived how this in the slightest degree qualifies or restricts the previous general exception as to the creeks, streams, c. The language of the exception in reference to the latter, is not "so much of the *Page 106 creeks, kills, runs and streams of water," are excepted as the grantor or his assigns may think requisite and appropriate for mining purposes, or any other special object; but all creeks,c., without limitation of any kind, are reserved absolutely. In confirmation of this view, we find another clause of the deed by which it is made a condition of the grant, that neither the grantee nor his assigns "do at any time hereafter erect or permit or cause to be erected, any mill, or mill dam upon any creek, kill, or river, or stream of water, within the said premises." The condition it will be perceived is as broad as the right reserved, if that extended to all the creeks, streams, c., but it is not in harmony with the construction of the Supreme Court, which limits that right to such use of the water as may be deemed requisite for mining purposes.
We may ask why prohibit the grantee from the use of the water not reserved to the grantor, and therefore, of no value to him ?
The answer given by the learned Judge, who delivered the opinion of the Supreme Court is, that the lessors or their friends might have claimed a monopoly of the milling business. This is certainly a substantial reason why the grantor should reserve all the water, but not a very satisfactory explanation why the condition should be more extensive than theexception. I feel great confidence, therefore, in the opinion, that the construction given to this part of the grant by the defendant below, is the correct one, and that the Circuit Judge erred in refusing to charge as requested, "that the reservation in said deed of "all creeks, kills, streams and runs of water," was an absolute reservation of the same for any and every purpose."
It was argued that the conveyance from French to Van Auken, reserved no right to flow any part of the lands conveyed, and must, therefore, be deemed absolute, and the grantor was thereby divested of all right to flow the premises in question.
We have attempted to show that the reservation in the lease from Ten Broeck to Bullock, of "all creeks, kills, runs and *Page 107 streams of water," was unqualified. To what did the parties suppose these terms to relate in 1829, when the deed from French to Van Auken was executed? To the state of the stream as it was at the time of the conveyance? or as it had been in 1793, the date of the lease to Bullock? Their intention is to be collected from the conveyance itself, and the attending circumstances.
And first, none of the words of the reservation above quoted have any definite legal meaning.
A creek according to Webster, sometimes signifies a small bay, inlet, or cove, and more generally in this country, a small river. Kill, is a Dutch word, signifying a channel or bed of the river, and hence the river or stream itself. A stream, means a river, brook, or rivulet, any thing in fact that is liquid and flows in a line or course.
It is presumed that a creek or stream does not cease to be such, merely because its course may be opposed by some obstruction whether natural or artificial. They do not cease to be streams, because in consequence of such obstruction their water may be deepened or flow with a diminished velocity. They would still flow, and the same quantity would pass any given point in its channel in the same time, and they would continue in common parlance to be designated by their former names.
The language of the reservation is therefore equally applicable to the condition of the stream as it was in 1829, or in 1793.
In the second place, the circumstances attending the conveyance point to the former period exclusively. The legal presumption is that the parties were upon the land when the conveyance was executed to Van Auken. (2 Phillips Ev. 8 Lond. ed., 731;Cowen and Hill's notes, 2 part, 1399.)
Let us assume therefore, what is substantially proved, that prior to the sale in 1829, to Van Auken, French had taken the former to the premises, and pointed out to him the dam, and its effect upon the stream, that it caused the water to set back one mile or more; to overflow a part of the premises he *Page 108 was about to purchase, and the use to which the water was applied; and had then said to him in the language of the deed, I "except and reserve all this creek, kill, stream, or run of water, and you are prohibited from erecting or permitting or causing to be erected any mill or mill dam thereon, and you agree that you will not give or cause to be given any manner of let or obstruction whatsoever to my prejudice in the full enjoyment of the rights, titles, and privileges saved to me by the saving and exception aforesaid."
I do not say that the grantee was bound so to understand, but it seems to me that he might naturally infer, that the reservation of the grantor, applied to the stream as it then was, and not as it would be if the dam was removed.
The phrase "full enjoyment" for which the grantee covenants, is to be taken distributively, and applied as well to creeks and streams as to mines. This follows necessarily, if it be admitted that the reservation of the former was absolute, and if this be granted, it is difficult to explain how the grantor, having reserved the stream, was to enjoy the privilege saved to him without the use of the water. Of course the proper exercise of the privilege was a question of fact for the jury. In Provost vs. Calder, (2 Wend. 517.) the exception in the deed was as follows: — "Excepting and reserving to myself, c., the sole and only right of the stream of water running through the land demised, and the party of the second part is not to erect or build any kind of water works on said stream or creek, but the same I hereby reserve to myself as aforesaid." It will be seen that the exception and prohibition are almost in the terms of the one under consideration. In the last clause, "the same I hereby reserve to myself as aforesaid," the immediate antecedent of "same" is, creek or stream, and the reservation to which the word "aforesaid" applies, was of the water, not of the right to build water works, a right not in terms reserved to the grantor, but which the grantee was prohibited from exercising. The Court, however, looking to the intention of the parties very properly determined that the right to erect water works on *Page 109 the lands granted was reserved. If we substitute the covenant of Van Auken in this case, for the last clause of the exception in the case cited, the sentence would read thus: "Excepting, c., and the party of the second part is not to erect or build any kind of water works on said creek, but he hereby agrees not to give or cause to be given any manner of let or obstruction to said grantor in the full enjoyment of the right and privilege saved to him by the saving and exception aforesaid." If the exception in Provost vs. Calder, was properly adjudged to reserve the land, the covenant above referred to taken in connection with the prohibition and reservation, must be sufficient to reserve a mere easement. It is true, a lease was taken in that case, and the circumstance is adverted to as evidence of the understanding of the parties. In this also, we have the fact that Van Auken occupied the land for ten years, without objecting to the dam or the flowing of his premises. The evidence of a practical construction is as strong in the one case as the other.
Upon the ground therefore first, that the reservation of all creeks, streams, c., in the lease of 1793, was absolute, and second, that by the true construction of the conveyance from French to Van Auken, the right to flow the premises for milling purposes, to the extent that they had been previously, and were at the time of the conveyance, overflowed, was reserved by the grantor, the judgment of the Supreme Court should be reversed, and venire de novo issue.