By the direction given to this case at nisi prius, the decision of the cause depends mainly upon the construction to be given to the deed of Benjamin Whitney to Elizabeth Whitney, introduced by the plaintiff. The deed is confused as to a part of its provisions, and it is not easy to reconcile one part with another, if we give a literal meaning to every clause. But though confused, the deed itself is not insensible ; and by comparing its several parts, and construing the whole together, we think the intention of the grantor may be ascertained with sufficient clearness to enable us to give the true construction to it. The apparent confusion and inconsistency in a deed sometimes arise from a want of that - knowledge of the existing state of things at the time of making it, which made it intelligible to the parties; and sometimes they arise from a mistake of the scrivener in accidentally repeating or omitting words or sentences, by which the sense is affécted.
The counsel for the defendants argues that the reservation in respect to the water is at the election of Elizabeth, and not at that of the grantor, and his son who is named in the deed; that by the first condition in the deed, she being excluded from the possession of the land during the life time of hei father, the grantor, the second condition was intended to give her the right, during his life, to take the water to the house of the father, which, as she was not in possession, she could not do without this provision. This construction, we think, is forced and unnatural; and to give it the appearance of probability, facts are assumed in regard to the respective estates of the father and the son, and the residence of the daughter, which are not in proof. And even if it be admitted that the daughter was living with the father at the time ol making the deed, yet, if he inclined to bring the water to his own house, why should he not reserve the right to himself *99instead of giving it to the daughter ? She does not appear to have had any interest in the estate thus to be bonefitted, nor does it appear that the father contemplated to give her any such interest. We are of opinion, that if this clause is to be considered as a right intended to be granted to Elizabeth, to divert the water from the estate of her brother, at her own pleasure, it is repugnant to the former part of the deed, by which she is enjoined not so to divert the water, and is to be rejected for its repugnancy. But we incline to the construction given by the plaintiff’s counsel, that it was the grantor’s intention to impose another condition in the deed, namely, to give the son a right, after Elizabeth came into possession of the estate, to enter upon the premises and to conduct the water, in logs, for the use of his house and barn ; a use which might require a diversion of the stream from its natural course. This construction was given at the trial by the presiding judge, and is now confirmed by further consideration of the deed. There was probably a mistake of the scrivener in drafting the clause. This construction, however, not only harmonizes with other parts of the deed, but corresponds with the use which has been made of the water, so far as that use is shown by the evidence at the trial; and what the parties do under a deed is often the best evidence of its true construction.
It has, however, been further contended that, this being a condition in favor of a third party, he is a stranger to the deed, and cannot take advantage of any breach of it, as none but the grantor and his heirs can enter for condition broken.
The deed, though inartificially drawn, was evidently intended by the grantor to make a provision for the daughter and the son, both during his life and after his decease; and for the benefit of his estate, he intended the son should have the use of the water flowing from a spring in the land given to the daughter. If this were now an attempt on the part of the son, or those claiming under him, for the first time to enforce the rights intended to be secured by the deed to the son—supposing it not to be lost by non user, nor defeated *100by any statute bar — technical difficulties, which have been suggested in the argument, might arise in the way of enforcing it, as being a condition or reservation in a deed, which strangers to it could not legally avail themselves of. But such is not the aspect of the present case. On the contrary, it appears by the testimony that, so early as the year 1810, the said Benjamin Whitney, jr. the son, was living on the place now owned by the plaintiff, and was in the actual enjoyment of the water of the spring, at his house, either by means of logs or troughs, and continued so to enjoy it during the timé the witness resided with him, a period of thirteen or fourteen years ; that he cleared out and stoned up the spring, jointly with the owner of the defendant’s place, as late as the year 1828 ; and that, about the year 1832, he.laid down logs, near old bored logs, carrying the water to his barn, as well as to his house, with the knowledge and consent of Davis, who then owned Dakin’s place, and who continued to own it till 1840. And it was further proved by Elisha Smith, who succeeded to Davis, and who is Dakin’s grantor, that the plaintiff continued so to use it while Smith owned the estate.
The facts, then, establish an enjoyment of the grant by the son and those claiming under Him, agreeably to the provisions of the father’s deed, for thirty five years, at least, prior to the injury complained of; and we are of opinion that the grantees of Elizabeth Whitney are now estopped from denying the right of Benjamin Whitney, jr. and those claiming under him, to enjoy the waters of the spring in the manner provided for in that deed, according to the practical construction given to it. And whatever difficulties might have arisen in enforcing the claim of Benjamin Whitney, jr. if it had been originally resisted, those difficulties are removed by the continued enjoyment of the right granted or intended to be granted. And we are of opinion, further, that the defendant is also precluded from questioning this right, by the terms of his deed, which declares that the premises are conveyed to him “ subject to Ezra Goddard’s right to convey water from the spring across ” the said land ; the plaintiff being, at the time of the grant, in the enjoyment of it.
*101We do not here mean to say that the defendant may not show the extent of the right, or any collateral matter that would go to extinguish it; hut that he shall not be permitted, against his own deed, to deny the existence of the right.
The evidence introduced by the parties shows the plaintiff’s enjoyment of the spring to be agreeably to the provisions of the deed under which the defendant Dakin claims, and to the reservation in his own deed ; and it is agreed that the plaintiff is the owner of the land formerly belonging to Benjamin Whitney, jr.
Judgment is therefore to be entered for the plaintiff for the damages agreed upon by the parties.