The opinion of the superior court proceeded on the ground, that the plaintiff had no right, on the facts stated, to the water issuing from the conduit on the defendant's land, and thence coming on to the land of the plaintiff. This opinion is alleged to be erroneous for two reasons.
1. The plaintiff's right is attempted to be supported, by user. The answer is, the user has not been adverse and uninterrupted. There has been no such possession or enjoyment, for fifteen years, as entitles the plaintiff to an action. The easement was extinguished, by the unity of possession of the defendant of both pieces of land, by the deed of the 7th of June, 1815. Since that time no right has been acquired. I am satisfied with this answer. Clements v. Lambert, 1 Taun. 206 Indeed, this ground has not been much pressed in argument.
2. It is insisted, that the deed of 16th of June, 1815, of the defendant to the plaintiff, conveyed the easement in question. The words of the deed describe only the land :-it is added, "to have and to hold the premises, with all their appurtenances." *292The defendant having, by a deed of the 7th of the same June, from the plaintiff, as administrator of Nathaniel Manning, become the owner of the land, if the position first above taken be correct, the deed of the 16th did not convey any right to the easement, unless it belonged naturall,y and necessarily, to the premises. If the conduit had been placed there a month previously, by a stranger, or by the defendant, it would hardly be said, that it was part of the freehold. It would not be strictly necessary to its enjoyment Co. Litt. 121. b. 122.a. "By the grant of a messuage, with the appurtenances, a shop annexed to it for thirty years does not pass, unless it be found to be part of the messuage." Bryan v. Wetherhead, Cro. Car. 17.
The subject matter of the grant in the deed, is the land, and that does not include the easement, as we have seen. Can, then, the thing granted be enlarged, by the words "to have and to hold with the appurtenances"? "It is in the premises of the deed that the thing is really granted." 3 Cruise's Dig. 47. sect. 51. The case of the Abbesse of Sion, 38 Hen. 6. 33. cited Hob. 161. Needler v. Bishop of Winchester, Hob. 231. Whalley v. Thompson & al. 1 Bos & Pull. 371. Grant v. Chace, 17 Mass. Rep. 442, It is the office of the habendum sometimes to enlarge the estate granted, but never to extend the subject matter of the grant; as was correctly laid down, by the counsel for the defendant.
The plaintiff, grantee of the defendant, by the deed of the 16th June, might have secured to himself this privilege, by express grant, or by covenants. He has taken this deed; and it is not for the court to give it a construction not authorized by law.
The superior court, therefore, was strictly correct, in the charge; and a new trial must be refused
The other Judges were of the same opinion, except Peters, J., who was not present.New trial not to be granted.