The opinion of the Court was subsequently prepared by
Shepley J.On the 12th of April, 1808, John Moore, Senior, being the owner of the tract of land including the premises, with a saw mill standing thereon, conveyed a part of that tract, not including the premises, to his son the demandant, and “ also the use, privilege, and benefit of one half of a saw mill.” And on the same day by another deed conveyed to his son John Moore, Jr., under whom the defendant claims, a part of the estate, includ*65ing within the bounds the premises, <( excepting the privilege of one half of a saw mill conveyed to Joseph Moore and his heirs.” The rights of the parties depend upon the true construction of these clauses in the deeds.
The application of the rule of law, that ambiguous language is to be construed strictly, as in the case of Howard v. Wadsworth, 3 Greenl. 471, is claimed for the tenant. The rule is not properly applicable to this case, because the grantor at the time he created the exception, conveyed to the demandant what was excepted, making reference in that deed to the exception. Both deeds being of the same date, and thus connected by reference are to be examined together to ascertain the true intention of the parties. Was it the design to convey to the demandant only the right of use of one half of the saw mill then standing, or was it to convey an estate in the mill and privilege, as it had been before used ?
The use, the benefit, and the privilege of a saw mill may refer only to the right of occupation. The words use, and benefit, have that appropriate signification. And the word privilege in common acceptation, means some immunity, or advantage. When used in connexion with a mill it has in this part of the country acquired a peculiar meaning well understood. By the privilege of a mill, or its equivalent, mill privilege, is understood the land and water used with the mill, and on which it and its appendages stand. There might be some doubt in what sense the word was used in the deed to the demandant on account of its connexion with the words, use and benefit. If those words had been omitted, the deed would have read, also the privilege of one half of a saw7 mill; and there could then have been but little doubt, that the design was to convey under that phraseology, a title to the land and water power. Whatever of doubt might arise from such connexion is removed by the language of the exception in the other deed. The exception is of the “ privilege of one half of a saw mill conveyed to Joseph Moore and bis heirs.” This language has acquired such a meaning, that it would be a forced construction, that should hold, that it meant no more, than the privilege of using a saw mill while it might remain standing.
The decisions respecting mills, and privileges have necessarily been made with reference to the peculiar phraseology in each deed *66or devise. In the case of Howard v. Wadsworth, 3 Greenl. 471, the exception was, “ exclusive of the grist mill now on said falls, with the right of maintaining the same.”
From the use of different language in the grant and in the exception, the words, mill privilege, being used in one, and the word, privilege, being omitted in the other, from the use the word now and from the right being given to maintain it, which would not be appropriate when a fee was granted, the Court concluded, that the intention was to except only the mill then standing, and not any part of the privilege, after it ceased to exist.
In the case of Blake v. Clark, 6 Greenl. 436, “ the saw mill,” without other description, was assigned to one of the heirs of the estate. And it was decided, that the fee of the land on which it and its appendages stood, and the use of the water, and any easement used with, or necessary to its enjoyment, would pass, but not the fee of the mill yard formerly used with the mill. The intention to convey no greater estate than an easement in the mill yard was inferred from the language used in assigning the widow’s dower, and in the division of the other portions of the estate.
In the case of Whitney v. Olney, 3 Mason, 280, the devise was of a moiety of “ two paper mills,” and “ appurtenances.”
Mr. Justice Story was of opinion, that “ all the land under the mill, and necessary for the use of it, and commonly used with it, passed to the devisees.”
In this case,- the terms, privilege, and mill, are both used, which ordinarily would pass both the mill and privilege, and the doubt has arisen from their arrangement and connexion with other words, which may be accounted for by the want of skill and knowledge in the scrivener.
The exception and grant cannot be considered void for uncertainty, as they must refer to the saw mill, upon the premises conveyed to John Moore, Jr.
The extent of the privilege or mill yard was properly left to the jury under the instructions. The rights of the oil mill, nail mill, and potash appear to have been defined by deed, and could no otherwise affect the rights of these parties than as evidence of the use made of the locus demanded. The omission to use any portion of the mill yard for a single year could not prevent its becom*67ing a part of it by appropriation and long use. Nor could it be curtailed by proof, that the mill might be well used by the occupation of less land than was in fact used.
The jury have found, that the demanded premises have been used as a mill yard for depositing logs and boards and were necessary as a privilege for the enjoyment and use of the mill.
Judgment on the verdict.