The deed made by Calvin Marshall in 1833, under which the plaintiff derives his title, conveyed a water privilege in Easton, having two dams, one about eight rods below the other: “ Also all the land which I, the said Calvin Marshall, own that said first mentioned dam flows, (reserving all the wood except what stands on said dam,) together with the right to flow all the land that said dam as it now stands will flow: Also all the land which the second mentioned dam flows, (reserving the wood,) together with the right to flow all the land that said dam as it now stands will flow.” When this ca»« was before us last
The material facts proved at the second trial were these: Both the dams had existed and been used long before the making of the deed of 1833. While they were in full use, the first or lower dam flowed about an acre and a half of land, all belonging to the grantor; and the second or upper dam flowed about nine and a half acres, part of which only was owned by him. At the time of the execution of the deed, both dams were in a dilapidated condition, the flumes and water-ways were open, only about a third of an acre was actually flowed by each dam, and no evidence was introduced to show the bounds of the portions thus flowed, or whether it was possible to prove such bounds, or whether the extent of such flowing was constantly varying while the dams were not in use. At the date of the deed, clusters of trees were scattered all over the grantor’s land which would be flowed by the upper dam when in use; and there were some trees growing on the third of an acre then actually flowed by that dam. This action is brought to recover damages for trespassing and cutting wood on the remaining land which was not covered with water at the date of the deed.
The strength of the argument for the defendant is that the fact, as now appearing, that there was some wood on the one third of an acre actually flowed by the upper dam at the time of the execution of the deed, satisfies the reservation of wood in that clause of the grant which relates to this dam ; and that if the grant of “ all the land which the second mentioned darn flows ” conveyed all tne land which this dam could flow, the added words “ together with the right to flow all the land that said dam as it now stands will flow ” would be superfluous and unmeaning.
In the conveyance of a water privilege, a grant of “ the land which ” a certain “ dam flows ” may reasonably be held to mean the land which the dam flows when actually used for the purpose for which it was erected and conveyed, and the extent of which is capable of being readily determined at any time; rather than the small portion of land which happens to be flowed at the moment of the conveyance, when the dam is out of repair and the flumes and water-ways open, depending as much upon the condition of the stream as upon that of the dam, and the bounds of which can with difficulty be ascertained at any subsequent time. The additional words, defining the right of flowing, seem to ys not to be inconsistent with this, for the reasons already
Exceptions sustained.