The deed from French to Van Auken, executed in 1829, is to be read and construed as though the reservations and conditions of the original lease were inserted in it, and were part and parcel of the language of the instrument. We are then to look at the whole instrument and give it such a construction as shall give full force and effect as far as possible to the grant and reservations according to the sense in which it was mutually understood and relied upon by the parties at the time. The question to be determined is, whether the Normanskill was intended by the parties to be *Page 110 reserved for the working of mines merely, as assumed by the Supreme Court? It is to be observed that the phrase "mining purposes" used throughout by the Circuit Judge, the Supreme Court, and Counsel for the plaintiff below, is not to be found in the deed. The language there employed is "working mines." By referring to the reservations it will be seen that there is a reservation of "so much ground within the same premises," as the grantor, his heirs and assigns might think necessary "for the erection of the works and buildings, for the convenient working of the said mines." Wood, firewood, and timber are also reserved "to use in building, repairing, accommodating and working said mines." But it nowhere appears that the grantor contemplated using the water-power in working the mines whenever or wherever they might be found, or putting it to any other use than he was making at the time of the grant and reservation. Indeed it is quite as difficult to perceive how the stream could be used to the least advantage for working mines," as it is to believe that French intended to grant to Van Auken the right to destroy his mill and dam immediately below, and only to reserve its use for this visionary and utterly impracticable service. Working mines consists mainly in excavating, draining, and raising ore; a service performed by miners, and entirely distinct and separate from the business of smelting ores and forging metals, where water or steam-power is necessarily employed. Again, look at the condition. If the grantor intended only to reserve the streams,c., for mining purposes, why not prohibit the grantee from erecting works to work mines? Why confine the prohibition to mills and mill dams? and that too under a penalty so stringent and sweeping as the forfeiture of the whole estate, unless he supposed he had by the reservation secured the use of the water for such purposes to himself.
The learned Justice who delivered the opinion of the Supreme Court, adverting to this condition in the deed or lease, says: "The lessors or their friends might have claimed a monopoly of the milling business for the neighborhood, and the condition might have been inserted to secure that." I *Page 111 think it quite obvious that such was the object of inserting this condition. But how was that object to be secured? Surely not by reserving the water merely for working mines! The construction of the Supreme Court shuts up the stream forever for milling purposes, unless these conflicting titles shall again chance to unite in the same person; and whatever may be its capacity for useful employment, or the wants and necessities of the public, it can only be brought into requisition on the discovery of a mine, in some location where hydraulic power may be "conveniently" tasked in excavating, and raising ore or other mineral substance to the surface.
This construction seems to me as much at war with all sound legal rules of interpretation as it is with a judicious public policy. I think we shall best give effect to the spirit, and intent of the instrument and the intentions of the parties by holding that in judgment of law, the grantor reserved the right to use the water as he was then using it, and as it had been used long antecedent to the reservation; and that we are bound to presume such to have been the intentions, unless it is limited and conferred to some other or different use by express and unequivocal terms.
But it is said that if the reservation of the stream is absolute and not limited to working mines merely, still the defendant below has no right to maintain his dam or flow the land of the plaintiff below beyond the ancient and natural bed of the stream. This would be so, if at the time of the grant the stream flowed in its ancient and natural channel, and there was nothing in the reservation to show the purpose for which it was reserved. Here, however, it was different. At the date of this grant, and for a long time prior to that, the defendant's mill-dam had been established, and if we are to believe the testimony of the witnesses, French and Van Auken flowed the water upon the premises in question, as high as it was at the commencement of this suit, and so continued without objection up to the time of the plaintiff's purchase, in 1837. As far back as 1793, as appears by Ten Broeck's deed, the stream was used for a saw-mill, and it might be a *Page 112 task of no little difficulty at this day to discover the ancient bed of the stream upon the premises in question.
I think there cannot be a reasonable doubt that the reservation in Van Aukin's deed, was a reservation of the use of the stream, as its use and flow were then established, and that it was so understood, and intended by the parties. The reservation and the condition, taken together, fully justify such a conclusion. In Provost vs. Calder, (2 Wend. 517.) the reservation was "the sole and only right of the stream of water running through the above demised piece of land, and the party of the second part is not to erect or build any kind of water-works whatsoever, on said stream of water or creek, but the same I hereby reserve to myself as aforesaid," and this the Court held to be a reservation of the right to use the water power upon the land. In that case, as in the one before us, it will be seen that there was only a reservation of the stream coupled with a provision that the other party should erect no water-works upon it. The cases of Burr vs. Mills, (21 Wend. 290, and 6 Connecticut, 289,) relied upon by the plaintiff's counsel, are cases of a conveyance without any reservation, and are not in point. Here there is a reservation of a stream which the party was then using, coupled with an absolute prohibition of the same use to the other party, and the only question is, as to the nature, purpose, and extent of the reservation. I am of opinion that the Judge erred in the construction of the reservation in the deed, and that the judgment should be reversed.
JONES, J. and WRIGHT, J., concurred in the result of the preceding opinions.
BRONSON, J., delivered an opinion in favor of affirming the judgment, with whom RUGGLES, and GRAY, JS., concurred. *Page 113