The following opinion was delivered by
Mr. Justice Sutherland.The complainants below (the respondents here) represent the grantees, and the appellants represent the grantor of the deed from General Schuyler to 8. & P. Deal and J. Nicoll; and the question is whether, according to the just construction and legal operation of that deed, General Schuyler had a right to divert the whole of the stream from its natural channel on the north to the south shore, whenever the whole of the water became necessary for his mills and other hydraulic works. The decree of the chancellor affirms he had not.
It will be perceived that previous to the execution of this deed, neither of the parties could erect a dam extending from shore to shore. General Schuyler owned the south, and Deals and Nicoll the north bank of the stream; neither had a right to butt upon the land of the other, and the principle object of the conveyance seems to have been to obviate this difficulty, and to put it in the power of each to dam across the stream; and accordingly one half of the bed of the stream is conveyed. If the deed had stopped here, there can be no doubt that there would have been a perfect equality of right between the parties; each would have owned one of the banks and one half of the bed of the stream, with a right to an equal participation in the use of the water, according to the principals of the common law, (Ex parte Jennings, 6 Gowen, 518,) but neither would have acquired the right to butt a dam against the opposite shore. To accomplish this object, General Schuyler saves or reserves to himself a right to butt a dam or dams on both sides or shores of the river, and expressly covenants that the grantees shall also have the same right. The covenant and the exception are in precisely the same terms.
The reservation can have no effect as an exception. An exception is something reserved by the grantor out of that which he has before granted. It is indispensable to a good exception that the thing excepted should be part of the thing previously granted, and not of any other thing. (3 Cruise’s Dig. tit. 32, ch. 3, sect. 48, 49. Shep. Touch. 77. Comyn’s Dig. Fait. E. 5, 6, 7, 8. Croke. Eliz. 6. Coke’s Litt. 47, a. 147, a.) The deed of General Schuyler did not convey *636or profess to convey any part of the north shore; he could not therefore reserve a right to build a dam against it. But though void as an exception, the reservation is binding upon the grantees and them assigns, and becomes operative either ag an jmp]ie(j covenant or by way of estoppel.
The deed is to be construed as though the parties had mutually covenanted that each should have a right to butt a dam upon the shore of the other; and, considered in this point of view, 1 see no ground for contending that it was the intention of the parties that the grantor should have a greater right in the use of the water than the grantees.
Nor is such a conclusion to be drawn from the reservation by the grantor of a right to use the water from the dam or dams which might be erected by the grantees, upon his paying such proportion of the expense and charges of erecting such dam or dams as shall be adequate to such use. Suppose the grantees had expressly covenanted that the grantor should have a right to use the water from their dam, upon paying a reasonable proportion of its cost; it certainly would not be a rational construction of such a covenant, that the covenantee should have a right to take the whole of ,the water, whenever he thought proper to pay the whole expense of the dam, or two thirds or three fourths of it, as his capiice or convenience might dictate; and a more liberal construction cannot be given to an implied covenant, or a reservation, made by the grantor in his own deed. Every exception or reservation is the act of the grantor, and shall therefore be construed most strictly against him, and most beneficially for the grantee.. (2 Saund. 166, 368. 10 Coke, 106, b. Com. Dig. Tit. Fait. E. 8.) It appears to me to have been the virtual intention of the parties to establish an, equality of right in the use of this water; and such in my opinion is the legal construction and effect of the conveyance in question.
It is not denied that the effect of the dam in question when completed will'be to divert a large proportion of the water from the mills of the respondents ; nor is it denied that it is the intention of the appellants, if not restrained, to complete the dam ; it was therefore a proper case for a preliminary *637injunction, as the injury might be irreparable. (1 Brown’s C. R. 583. 2 Cox. Cas. 4. 10 Ves. 193. 2 Johns. Ch. R. 164, 272. 3 id. 282. 5 id. 101. 6 id. 439. Eden on Inj. 164, note 7, b.) And the defendants having failed to establish their title by their . answer, the motion to dissolve the injunction was properly denied. I am therefore of opinion that the decree below ought to be affirmed.
Mr. Senator S. Allen also delivered an opinion in affirmance of the order appealed from.
This being the opinion of all the members of the court, only one senator dissenting, it was thereupon ordered, adjudged and decreed that the order of the chancellor refusing to dissolve the injunction be affirmed.