dissenting. — The rights of the parties litigant are to be determined by and are dependent upon the construction of the deed uuder which the demandants derive their title.
On the 15th March, 1841, Jay S. Putnam and Aaron R. Putnam leased to Samuel Houlton " the following described mill privilege, situate in Houlton, viz., commencing at the south end of our gristmill flume, now occupied by us in said Houlton, four feet east of the southwest corner of said flume, running northerly on said flume parallel Avith said gristmill forty feet, thence easterly to the east side of said flume, thence northerly to James A. Drew’s line, thence easterly on said line fifteen feet, thence southerly, parallel with said gristmill, a sufficient distance to come in right angles with first mentioned bounds, thence westerly to the first mentioned bound, together Avith our right of the water privilege of said dam for dressing cloth,' carding and manufacturing wool in its various branches, with the right to occupy the above described part of said flume for a foundation to erect buildings on, and the privilege of making a road at the south end of said gristmill to said premises, not obstructing the privilege of water to said gristmill, provided, also, that the said Houlton, or those claiming by, through or under him, shall take no Avater, when, by so doing, there would not be sufficient left for the Putnams’ gristmill, or when the same Avould interfere with the right of *329water granted to James A. Drew, in 1829, and to Edward Kelleran, in 1834.” This lease was under seal, and for the term of twenty years, with a perpetual right of renewal on the part of the lessee.
On March 10, 1843, Samuel Houlton conveyed his interest, thus acquired, to Hiram Esty, for whose benefit he had originally taken the lease.
After this lease, and while Esty was in the occupation of the premises and of the buildings erected thereon, on the 13th of May, 1843, said J. S. and A. R. Putnam mortgaged to Bachelor Hussey " the gristmill, in said Houlton, on the Meduxnekeag stream, now owned and occupied by us, with all the appurtenances and machinery thereto belonging, together with the land and privileges where the sam'e is situated, necessary for and attached to said gristmill ,• hereby meaning and intending to convey all the lands and mill privilege (not heretofore sold by us) on the dam connected with said gristmill and privilege, with the preference of water in said stream and privilege; being situate on and a part of lot numbered thirty-eight, in said Houlton, the same being subject, or a part of .the same mill to a mortgage in favor of Edward Kelleran, on which there is due about the sum of three hundred and fifty dollars.”
This mortgage was duly foreclosed and the title to the mortgaged premises is vested in the plaintiffs.
On the 29th April, 1844, the Putnams conveyed to Rufus Mansur the premises leased to Houlton. Mansur conveyed the same to Hiram Esty, on Dec. 29, 1851.
The defendant acquired the title of Hiram Esty to the premises in dispute, by deed dated Aug. 29, 1863.
The tenant, and those under whom his title is derived, have occupied the premises in controversy since the date of the lease from the Putnams to Houlton, 15th March, 1841, without the payment of rent to, or the recognition of title in the plaintiffs, or those claiming title under the mortgage from the Putnams to Hussey, dated 13th May, 1843.
The demandants claim that the land in controversy is in-*330eluded iu the mortgage from the Putnams to Hussey, of the date oí May 13, 1843.
This mortgage conveys "the gristmill in said Houlton, on Meduxnekeag, now owned and occupied, by us, together with the land and privileges where the same is situated, necessary for and attached, to said gristmillThese words convey the gristmill and the land under and adjoining the same, necessary for its use and then used with it. Whitney v. Olney, 3 Mason, 280; Crosby v. Bradbury, 20 Maine, 61.
They do not convey the premises in dispute. They are not included in the expression now cnoned and occupied, for they were subject to a lease with a right of perpetual renewal, and were not occupied by the mortgagers.
The plaintiffs cannot claim these premises as " necessary for and attached to said gristmill,” for the gristmill has been occupied for about a quarter of a century without its occupants enjoying them. The lease to Houlton determines the question of necessity. It was given while the Putnams were the undisputed owner's of the whole. The mortgage is subsequent to that lease, which was duly recorded.
Neither are these promises attached to said gristmill. The proof shows they never were. If they had been, they were detached by the lease, and with a right on the part of the lessee that they should ever remain thus detached. If the jury have found these premises "necessary for and attached to the gristmill,” such finding is most manifestly against all the evidence in the case, for they have been used for purposes disconnected with the gristmill, from a period anterior ito the mortgage under which the demandants claim, and have been so used by and under authority derived from ;tliose from whom the demandants’ title was obtained. Furbush v. Lambard, 13 Met., 109.
But the mortgage deed further adds; "hereby meaning and intending to convey all the lands and mjll privilege (not heretofore sold by us) on the dam connected with said gristmill privilege,” &c.
The words " meaning and intending,” obviously imply *331that what follows is explanatory of what precedes. Such is their natural and obvious meaning, though, in some cases, what follows has been held to enlarge, and in others, to restrict the previous grant.
The meaning and intention is not " to convey all the lands and mill privilege (not heretofore sold by us) on the dam,” but the " lands and mill privileges on the dam connected with said gristmill,” excepting what had been sold, and those only. It was not to convey lands adjacent to the gristmill. It is not to convey other lands and privileges. It is to convey only those on the dam connected with the gristmill. The object was to assure all the rights of the gristmill as connected with the dam, not to convey all mills and privileges on the dam.
But the land and.privileges previously leased, though on the dam, were not then and never had been "connected with the said gristmill and privilege.” It was land other than land connected therewith. It was a privilege other than the gristmill privilege. If they had ever constituted any part or portion of the gristmill lot and its privilege, of ■which there is no proof, they had been disconnected therefrom. They had ceased, though on the dam, to bo "connected with said gristmill and privilege” by the act of the Putnams, and before the conveyance, under which the de-mandants claim.
Nor are these views inconsistent with those previously expressed, ívheu the construction of the language in the mortgage deed from the Putnams to Hussey was under the consideration of the Court. In Esty v. Baker, 48 Maine, 495, the Court intimated clearly the opinion, that the road leased to Houlton and granted to Mansur, was neither necessary for or attached to the plaintiffs’ gristmill. A fortiori, was this the case as to the residue of the premises thus leased and granted. In Esty v. Baker, 50 Maine, 325, Mr. Justice Davis remarks as follows : — "So far as appears in the evidence reported, the parties themselves, by their subsequent acts and occupation, seem to have adopted the latter *332construction, treating the grant as embracing, not all the lands and privilege on the dam, not previously sold, but all the lands and privilege connected with the gristmill.” But there is no intimation that the grant embraced other lands and privileges than those connected with the gristmill, still less, that it embraced those which, if ever connected therewith, had, by the previous act of the mortgager, been disconnected, and were then occupied and enjoyed as separate and distinct therefrom.
The verdict is alike against law and evidence, and should be set aside and a new trial granted.
Kent and Barrows, JJ., concurred.