None of the cases relied on by the defendant’s counsel, support the claim which he has thought proper to interpose under the clauses in question.
Jackson ex dem. Hasbrouck v. Vermilyea (6 Cowen, 677), holds that the exception of a mill site in a conveyance, operates as an exception both of the soil for the mill site and of land necessary for the pond and the milling business.
Dygert v. Mathews (11 Wend. 35), admitted an exception of so much land as is necessary for the use of a grist mill to be good, but denied its operation until the grantor or his assigns should exercise the right.
Oakley v. Stanley (5 Wend. 523), decided merely that the conveyance of land on which a factory dam stood at’the time, *48carried the right to flow back on other land of the grantor, and oblige those claiming under him by title subsequent to allow the same thing.
In Prevost v. Calder (2 Wend. 517, 519,523, 4), it was held that excepting the sole and only fight of a stream of water, and providing that the grantee shall not erect or build any kind of water work on the stream, but reserving the same to the grantor, operated as a general reservation of a right to use the water power. ,
In the case at bar, there is no exception as in those quoted, of mill sites, nor so much land as is necessary for a mill, nor the sole right to the stream, followed by an inhibition to erect mills, nor any thing like either.
The lease first contains the exception of all mines and minerals. This is immediately followed by all creeks and streams, and so much ground as the lessor, &c., may think requisite and appropriate for the erection of works and buildings for the convenient working of the mines. Wood and timber are then reserved for the same purpose; and the right to dig, with that of passing and repassing. All, however, limited to the same purpose by express terms. Farther on, there is a condition that the lessee, his heirs or assigns, are not to give any let or obstruction to the lessors, their heirs and assigns, to their prejudice in the enjoyment of all the rights, titles and privileges saved to him or them by the saving and exception before in the lease mentioned. What are those rights, titles and privileges saved and excepted ? There is no saving or exception, except for mining purposes, if we are to take the words in their fair and obvious import. The intermediate condition, that neither the lessee nor his heirs, &c. shall erect mills or dams on the premises, is not a saving or exception of any right in the lessors, but a mere restriction of the lessee’s right. The lessors or their friends might have claimed a monopoly of the milling business for the neighborhood, and the condition might have been inserted to secure that. It would be a most singular construction of a clause forbidding a grantee to build a mill on the granted premises, which would authorize a dam below sufficient to drown him out.
It is said to be the same thing to the plaintiff whether the dam *49be built for the flouring or the mining business. How do we know that 1 No mine has yet been discovered. If such a discovery should ever be made, the profit may be too inconsiderable to warrant the erection of hydraulic machinery.
But the argument, if true, proves too much. The rule, if insisted on, would extend to the wood and timber, in the same clause: Thus the lessee is not only to be flowed, but his premises may be wasted for the milling business, under an exception of mines. It supposes that a man who is ready to yield an exception for a purpose by which he can probably never be affected, intends a purpose by which he certainly would. But it is said a proportionable defalcation of rent is provided for. If this were a correct principle of construction, we have no means of ascertaining the adequacy of the proportion; but it is not.
The rule laid down in Dygert v. Mathews, is the true one. “ The reservation of the land is for a specific purpose, and an appropriation to any other object by the grantors or their assigns, is without right. They can be in no better condition than strangers.” It was said in Provost v. Calder, that every doubt upon the words should be turned against the grantor. But I do not believe we are warranted in going to rules of construction. The expression limits the purpose. So far I have supposed that the clauses saved the right, whatever it was, to make erections off the premises demised. But clearly they did not. The exceptions are confined in the clearest terms to the streams, &c., within the boundaries of the lease to Bullock. Within that compass, Ten Broeck and those claiming under him, might have used the water for mining purposes; not on other lands, to the prejudice of the plaintiff, even for those purposes. The words of restriction on which the defendant’s counsel rely as the main, if not the sole argument for the right of building a mill dam, admit of no possible application to land without the boundaries of the lease to Bullock.
The criticism which denies a full deduction of title from Bullock to the plaintiff, and insists that the defendant claims under an absolute grant prior in date to that under which the plaintiff claims,' was not made at the trial. Nor if made,1 is it apparent how it can affect the plaintiff. Abel French, senior, is shown by *50the bill of exceptions - to be the source of title, common both to the plaintiff and defendant. He conveyed to Van Auken in 1829, with clauses excepting no more than those in the lease from Ten Broeck and wife. The plaintiff stands in Van Auken’s place, from whom the title came with' the same clauses as often as the transfer may have been repeated. The point stated to have been made for the defendant at the trial, implies that the title pasfeed from Abel French, senior, and McKown to the defendant subsequently to the date of the deed to Van* Auken; and if this was not so, the fact should have been stated in the bill. The inference is against it. If the defendant in fact took an absolute •title from one of the plaintiff’s predecessors in his line of conveyances, and that, too, prior to the deed to Van Auken, then I admit that the rule in Oakley v. Stanley applies. If the plaintiff claims under a man who might grant the right to flow, and he did so before putting his right out of his hands on the way to the plaintiff, that fact may be shown on the new trial.
John Van Burén, counsel for plaintiff in error.First. The judge erred in charging the jury that the reservation of all “ creeks, kills, streams and runs of water in French’s Deed was a reservation only for mining purposes..
1. The “ covenants, reservations and conditions” in the lease from Ten Broeck, are a part of the deed from Abel French, sen., to. Jeremiah Van Auken, under which plaintiff claimed title.
2. The reservation of “ all creeks, kills, streams and runs of water” is absolute (Oakley v. Stanley, 5 Wend. 523; Provost v. Colder, 2 Wend. 517).
3. The construction thus given by the Court to the deed from Abel French, sen., in 1829, destroys the valuable prescriptive right the defendant has acquired by twenty-five years adverse possession.
Second. The conveyance from French to Van Auken, with the. reservation contained therein, bounded the" said Van Auken *51on the edge of the stream, as it then was, and gave him no title to the land then under water (Childs v. Starr, 4 Hill, 369).
*50The contrary must be assumed upon the case as stated in the bill.
I am of opinion that the verdict should be set aside, and a new trial granted.
*51Third. The judge erred in refusing to submit to the jury as a question of fact, the true location of French’s deed to Van Auken (Frier v Van Alen, 8 J. R. 495; Livingston v. Ten Broeck, 16 J. R. 94; Rockwell v. Adams, 7 Cow. 761; Dibble v. Rogers, 13 Wend. 536).
Fourth. The judge erred in overruling the questions put to Abel French (fol. 46,47); and to Jeremiah Van Auken (fol. 51, 52, 53; 9 Cow. 125; 4 Bing. N. C. 187; Chapman v. Black, 3 Kent’s Com. 2 ed 421, 424; 17 Mass. R. 298; Hatch v. Dwight, 13th Peters’ Rep. 89; Bradley v. the Washington, Alexandria and Georgetown Steam boat Co., R. S. 2d ed. 727, §§ 45, 47).
M. T. Reynolds, counsel for defendant in error.First. The conveyance by French to Van Auken (under whom the plaintiff below derives title), being absolute, and without reserving any right to flow any part of the lands thus conveyed, except such right as is reserved in the lease from Ten Broeck, divested the grantor (the defendant below), of a right to flow the land conveyed.
Second. The reservation in the lease referred to, is in terms confined to the use of the stream for mills erected, &c., used for the purposes of mining.
Third. The grant containing an express reservation, thereby more strongly excludes all implied reservations.
Fourth. The court decided correctly in overruling the objections and offers made by the defendant below.
Fifth. If any error was committed in relation to such ruling, the defendant having on the hearing before the Supreme Court waived all other objections than those raised at the prior hearing, is precluded now from urging those objections. (21 Wend. 290: 6 Conn. 289.)
Judgment reversed and venire de novo ordered.
Note. The court held that the reservation of the stream, was for all pur poses, and not for mining purposes merely. And also that the reservation *52was not merely of the natural hed of the stream, but of a right to use the stream in the same manner, and to set back the water to the same extent as when the grant was made.
Reported 1 Comstock, 96.
Jewett, Ch. J., Gardinier and Johnson. Judges, delivered opinions for reversal, in which Jones and Wright, Judges, concurred. Bronson, Judge, delivered an opinion in favor of affirming the judgment, in which Ruggi.es and Gray, Judges, concurred.