This case is submitted, without argument, and the counsel for the defendant has stated several points, as reasons for setting aside the verdict, and awarding a new trial.
1. It is contended, that the plaintiff had no interest in the lands overflowed by the mill dam, as they were embraced by the exception or reservation, contained in the original lease to Griggs. The lease excepts and reserves all streams, and the soil under them, with the right to erect mills, and mill dams, and it then excepts and reserves the land which may be overflowed, in consequence of such dams. But until the grantor has exercised his right to erect mills, and mill dams, it cannot be ascertained what *83lands will be overflowed, and the reservation is, in the mean time, inoperative, and, considered strictly as an exception in the deed, it is void for uncertainty. It must be construed in relation to the subject matter, and it is like the right to erect mills, and to have ingress to them, the reservation only of a right to use the lands so conveyed, for such a specific purpose. The direct interest in the soil, in the mean time, passed by the deed; and the plaintiff can well maintain the present action, so far as respects his interest in the premises. '
2. The next, and the principal point in the case, relates to^the,matter set up as a defence, and to the competency of the witness, who was offered to prove it. The defence was, that the mill and mill dam were erected by permission of Stephen Van Rensselaer, the original grantor, and Stephen Gregory was offered as a witness to prove this permission. He was objected to, and rejected ; but the plaintiff, at the same time, offered to admit in evidence any permission in writing from the grantor. It is not necessary to examine whether the witness was, or was not competent, because assuming him to have been so, his testimony would have been of no avail, since the right in question could not pass by parol. The right reserved by the lease to the grantor, and his heirs and assigns, to erect mills, or mill dams, was an incorporeal hereditament. It was not the- land itself, but a right annexed to it, and it could only pass by grant. The appropriate subject matter of grants, is these incorporeal rights, of which livery cannot be had, and a grant is, in general, good only by deed. This was the rule of the common law, and were it otherwise, no such interest could be assigned, or granted, without writing, according to the express provision of the statute of frauds. The court are of opinion, therefore, that the motion on the part of the defendant be denied.
Rule refused.