DISSENTING OPINION OF
ROBERTSON, C.J.I am unable to concur either in the view that an intent to except the surplus water from the operation of the lease is inferable from the language used in the lease though it be read in the light of the surrounding circumstances, or in the view that the surplus water, at the time the lease to the defendant was executed, did not belong to or go with the land on which the well was situated.
An exception in a deed or lease withholds from its operation some part or parcel of the premises which, but for the exception, would pass by the general description. A reservation is the creation of some new right issuing out of the premises, and which did not exist before as an independent right, in behalf of the grantor or lessor. Pilipo v. Scott, 21 Haw. 609. A right in or to running water upon *671the land of another, as distinguished from a right to take water from a surface well or cistern, is an easement. 14 Cyc. 1143; Amidon v. Harris, 113 Mass. 59; Hill v. Lord, 48 Me. 83, 99; Borst v. Empie, 5 N. Y. 33. Here, it would be a right issuing out of the premises which prior to the lease did not exist as a right independent of the title to the land, and, therefore, would be the proper subject, not of an exception, but of a reservation. Sheffield W. Co. v. Elk T. Co., 225 Pa. St. 614, 619. The question is whether a reservation of the right to the water over and above what is required for irrigation and domestic purposes on the demised premises can be implied or inferred. Technical words are not necessary to create a reservation of an easement. It may arise out of a covenant in a lease. But in order to effectuate an apparent intention of the parties to a lease to make a reservation the language used by them must be reasonably susceptible of the required interpretation. Reservations by implication or inference are not favored. If the language of a lease is doubtful or ambiguous as to what was intended to be demised it should be construed against the lessor. 18 A. & E. Enc. Law (2d ed.) 617; Coney v. Dowsett, 3 Haw. 740. See also Wells v. Gar-butt, 132 N. Y. 430, 435, where the court said, “As a grant- or cannot derogate from his own grant, while a grantee may take the language of the deed most strongly in his favor, the law will imply an easement in favor of a grantee more readily than it will in favor of a grantor, and this distinction explains many of the apparent inconsistencies in the reported cases.” “If there is a reasonable doubt as to the meaning of an exception in a lease, the words of the exception, being the words of the lessor, are to be construed favorably for the lessee, and against the lessor.” 1 Taylor L. & T. (8th ed.) Sec. 158. The defendant’s lease demised to him the land in question (excepting “a small lot near the stream”) together with all the “rights, ease*672ments, privileges and appurtenances” belonging thereto. It will be observed that the clause in the lease upon which the complainant bases his claim, namely, “that the said lessee have the right to use as much water of the artesian well on the lands hereby demised as shall be necessary for the purpose of irrigating the said lands and for domestic purposes,” is not inconsistent with, and does not in terms derogate from the express general words of demise. Upon the principle that the greater includes the less that clause neither added to nor subtracted from the general terms, and should, therefore, be treated as surplusage. But counsel for the complainant contends, and the majority of the court evidently find, that from the affirmative langugae of the clause in question the negative provision is to be inferred, that the lessee shall not have or use any more water than is necessary for the irrigation of the demised lands and for his domestic purposes, and that from such inference the intent to except the surplus water shpuld be found. And these inferences are raised, be it noted, not against the lessor, but in his favor. But the language of the lease is clear and unambiguous. It demised to the defendant the lands with all the rights, privileges and appurtenances belonging thereto. A reservation of the right to the surplus water in question might perhaps have been held to be reserved by implication as appurtenant to the adjoining land upon which the water was being used at the time of the execution of the lease if the lessor had owned it. See 14 Cyc. 1171, 1172; 9 R. C. L. 757. But it is not averred in the bill that the land occupied by the complainant, and upon which the water was used, belonged to the Chinese Y. M. C. A. The fact that the well supplies more water than can be used on the premises demised to the defendant would lead one naturally to expect that some provision making disposition of the surplus would be found in the lease. There is nothing more than a covenant on the part *673of the lessee that “he will not sell or permit water to be taken away by any person from said artesian well, by pipe or otherwise, without the cousent in writing of the lessor, its successors or assigns.” But it would seem to be more reasonable, and more in accord with the rules of construction, if they had to be invoked, to infer from that covenant that the parties contemplated that the surplus water would be disposed of under some mutual arrangement of the parties, than to infer from the other clause that the lessor reserved to itself an easement in gross in the demised premises. It is neither averred nor argued that the surplus water was reserved as an appurtenance to the piece of land expressly excepted in the lease.
It is said in the principal opinion that “In case of conflict between the premises of a deed and the habendum the former controls.” But there is no conflict between the premises and habendum of the defendant’s lease. Taylor is quoted to the effect that “conditions and limitations are not to be raised by mere inference.” Yet the majority raise the inference that the lessee was not to have or use more than a certain quantity of water and from that inference infer an intent to except from the operation of the lease the rest of the water. The rule expressio unius est exclusio alterius is invoked, but the application of that rule, in view of the fact that there is an express exception in the lease of a piece of land, would prevent the inferring of an exception of the surplus water. The question is put whether, if the well flowed enough water to irrigate one thousand acres of land, it would be contended that all of the water passed under the lease. On the other hand it might be asked whether, if the surplus water was sufficient to irrigate only a square yard of land, it would be contended that there was an intent on the part of the lessor to reserve to itself an easement to the extent of such surplus. But the putting of extreme illustrations does not help to solve the problem. The fact *674that in his return to the order to show cause why a temporary injunction should not issue the defendant did not claim all that he could have claimed under his lease would not preclude him from asserting a larger or further claim under his demurrer to the bill.
That the surplus water did not belong to the land on which the well is situated and did not pass by the demise of the land because not mentioned in the lease seems to be the position taken in the latter part of the prevailing opinion. No such contention was advanced by counsel for the complainant. The right to take water from a flowing well or stream may be separated by the owner from the title to the land by grant or reservation, and upon such separation the right to the water would become an easement in the land. But until a severance of the title, the water, in the nature of things, is part and parcel of the land, and would pass to a grantee or lessee without its being mentioned in the conveyance. See 3 Farnham on Waters, Sec. 722. It is immaterial whether or not the water was being put to a beneficial use. No distinction is to be drawn between water flowing from a natural spring and such as flows from an artesian well. De Wolfskill v. Smith, 5 Cal. App. 175, 181. An artesian well on land conveyed without reservation passes as part of the land. Reid v. Reid. 112 Cal. 274, 277.
It is my opinion that the right to all of the water of the well passed by the demise of the land to the defendant; that the complainant's assignor took no interest in or right to the water under the so-called lease of September 21; that there is no equity in the bill; and that the decree-should be affirmed.