— This case comes before us on exceptions and on a motion for a new trial on the ground of newly discovered evidence.
Jonathan Farrar was the owner of the entire estate now owned by the plaintiff and defendants, concerning which the controversy has arisen. Oct. 11, 1834, said Farrar conveyed to one Baker a piece of land opposite his tannery with certain rights of water. The deed to Baker contains certain reservations for the benefit of the grantor. The defendants now represent Baker, and the plaintiff Jonathan Farrar, as he stood immediately after his deed was made to Baker. The rights of the parties mainly depend on the construction of the Baker deed. That deed conveys the land therein described “ together with the privilege of drawing water from the side dam on said premises sufficient to carry a turning lathe and other necessary machinery for the chair making business, and no other,” said deed also contains the following reservation — “ meaning to reserve water sufficient at all times to work the bark mill, fulling stocks and roller as now used.”
Upon the question yvhether the defendants had the right to apply the water to any other use, than that of propelling a turning lathe, &c., the Judge gave instructions which, being in favor of the defendants, are «not made the subject of complaint.
Since the date of the Baker deed, important alterations and improvements have been made by the plaintiff in the machinery in his tannery, and the business of the establishment has been very much increased, which requires the machinery to be kept in operation more constantly than prior to that time.
The fact whether it would require more water to work the *70machinery now in the tannery, than was required to work the old machinery during a given period of time, was in controversy, and upon that point there was much conflict of testimony.
The plaintiff contended, that by the provisions in the Baker deed, he was authorized to use as much water as was sufficient to work the bark mill, fulling stocks and roller, all the time, in the condition that the mill and machinery was at the date of that deed. The defendant contended, that the true construction of that deed, was, that the plaintiff should be entitled to so much water only as was actually used for propelling the different pieces of machinery' in his mill at the time above specified.
Upon this point the Judge instructed the jury, “ that the reservation did not limit the grantor or his assigns to the quantity of water, necessary to do the amount of business that was then or had before been done in that tannery, nor to the amount which could have been done in the mode of tanning then in use, provided the tannery had been enlarged, nor to the amount that could have been done in the tannery as it then was by any other mode of tanning, but only to the amount of water that was sufficient, at the date of the Baker deed, to use the wheels in the mode in which they were constructed to run, for the purpose of tanning in that yard, in any mode, and to any amount; that the plaintiff had a right, if he needed for the purpose of his tannery, to as much water as could have been required to work three wheels at all times, in the mode in which they were constructed to run ; that he could not alter the construction or mode of running so as to draw more water in a given time, than could have been drawn at the date of the deed. That this doctrine must hold even though it should deprive the defendants entirely of the use of the water,” &c.
The instruction is explicit and could not by possibility have been misunderstood by the jury.
The case finds that the gates at the pond or reservoir dam were so constructed as to vent sixty-three and nine-twelfths *71cubic feet of water per second, and that the spouts of the plaintiff’s mill would vent sixty-three and seven-twelfths cubic feet, being, within an immaterial fraction, all the water that could pass the gates at the foot of the pond.
The plaintiff contended and introduced evidence to prove, that he had so altered the spouts, wheels and geering of his mill, that he actually used less water than said Jonathan Farrar would have used, had he extended the business of his tannery so as to require his wheels to be worked at all times, in the mode in which they were constructed to run.
The deed to Baker purports to grant rights of water to be applied to actual and beneficial use. The parties must be presumed to have intended to transfer something by that deed. It can hardly be presumed that a person purchasing a privilege on which to establish a manufacturing business for the successful prosecution of which a constant water power was essential, would consent to the insertion of a reservation in his deed which would effectually negative the terms of his grant.
It is however manifest, that it was the intention of the grantor to put some restrictions upon his grant to Baker. 'What was the extent of those restrictions ? What is the standard by which the rights of the parties are to be measured ?
Every exception or reservation in a deed is the act of the grantor and should therefore be construed most strictly against him and most beneficially for the grantee. 10 Coke, 106, b ; Com. Dig. Tit. Foil. E. 8; Case v. Height, 3 Wend. 632.
The Judge, iu his instructions to tlic jury, construed the words, as now used, as being equivalent to the words, as now constructed to run. According to this construction the reservation would read, “ meaning to reserve water sufficient at all times to work the bark mill, fulling stocks, and roller as now constructed to run,” thus making the capacity of the mill to vent water the standard by which to determine the rights of the parties, rather than the amount of water then actually used. Had the words of the reservation been “ now in use,” instead of “ as now used,” this construction would seem to have been correct. But we think the obvious meaning of the *72language shows, that the rights of the parties are to be determined by the quantity of water then actually used by the mill and not by its capacity to use water, and that such must have been the intention of the parties cannot well be doubted, when we consider that the other construction would render the grant of little or no value. If, however, there is doubt as to the true construction of the language in the reservation, the general rule above referred to requires, that the construction be given which is most favorable to the grantee.
The instruction “ that the defendants by giving the lease to Fitzgerald and Curtis, rendered themselves liable for any damage arising from the use of the water by the lessees for the purpose of working the machinery in the shop at the time of the lease, in the mode in which, by its construction, it was designed to be used, but not for working any machinery afterwards put in, unless by their procurement,” is also objected to by defendants.
The lease to Fitzgerald and Curtis gives no right to use any water by express terms. It does however, by implication, convey the right to the use of the water necessary to the enjoyment of the premises leased, so far as that right existed in the lessors. Rackly v. Sprague, 17 Maine, 281; Hathorn v. Stinson, 10 Maine, 224.
This right to the use of water, being obtained only by implication of law, could not be extended beyond the rights possessed by the lessors.
The fact that the lessors were not authorized to draw water sufficient to propel all the machinery they had in their shop at the same time would not change this result if such fact were found to exist.
From the view we have taken of this case, the question whether Cutler had authority to lease the premises does not become material. Nor is it necessary for us to consider the motion for a new trial. Exceptions are sustained
and a new trial granted.
Shepley, C. J., and Wells and Appleton, J. J., concurred. Hathaway, J., concurred in the result.