(dissenting). Prior to 1858, Edward S. Moore was the sole owner of the Rock-riyer waterpower at Three Rivers, in this State, on Rock river. The water-power embraced a dam and pond covering several acres, and which gave a head at the dam of about, 8 feet. Mr. Moore also owned the real estate lying about the dam, and upon which it was situated. On the west side of the river Mr.. Moore had and owned a factory, having one water-wheel, and taking water from the pond through an opening 15 inches square. On the east side of the river he had and owned a flouring-mill, having five wheels, each of the same make and capacity of the factory wheel. The mill contained four run of stone, and the wheels were such as were usually used in mills and factories at that time. In dry weather, in summer, the mill used nearly all the water that could be obtained from the river to run it. At other times - the stream furnished much more water than was needed for the mill. A portion of the time the mill was kept running night and day, and had been operated several years previous to 1858. In that year Caldwell & Wilcox opened a factory near the dam, on the west side of the river, for making sash, doors, and blinds, and entered into a contract with Mr. Moore for the purchase of a site therefor, together with certain rights in the water-power. These were obtained, and they entered into the business, which they continued until 1859, when Wilcox sold his interest to Caldwell. Caldwell continued the business until 1860; and on November 10, of that year he received his deed of Moore on his purchase. Said deed purports to be for the com *446sideration of $2,500, and, after describing tbe land for tbe site of tbe factory, continuing, says:
“ Together with the undivided one-eighth part of the land flowed, or subject to be flowed, by said pond, for which the parties of the first part have a title in fee-simple, together with the undivided one-eighth of all the interest the parties .of the first part have in and to other lands now flowed by said pond; and it is understood and agreed by the parties that, if the undivided one-eighth of the Rock-river water-power, which is hereby intended to be conveyed, does not amount to 225 inches of water, then the party of the second part, his heirs and devisees, shall have the right to. use enough water from said pond to make 225 inches, or a stream of water filling an opening 15 inches square, and the same to be used under a head of eight feet, upon the above-described premises, according to the following provisions, that is to say: The parties of the first part, for themselves, their heirs and assigns, reserve a sufficient amount of water, properly used, to drive four run of French buhr millstones, with all necessary machinery, first; and the party of the second part, his heirs and assigns, is to have the next use of the water, to the amount above specified, together with a proper use of the river below the bridge for tail water. And it is mutually agreed that in case of a break in the dam, or in any necessary repairs to the same, the parties of the first part shall be to seven-eighths of the expense, and the party of the second part one-eighth, except when a break occurs and repairs are necessary below or at the head gates of the head race to the flouring-mill, or in or around any similar improvement to the said dam, or in or around the flume to the factory on the above-described premises, in which case the repairs are to be made by the parties owning the premises on which the bi'eak occui’s or repairs are necessary.
“And it is further agreed by the parties that there shall be no unnecessary waste of water, and, in case of improvement of the remainder of the water-power, proper respect shall be paid to the same, by keeping head gates shut when the water is not wanted for propelliixg machinery, and the flume kept tight and the dam repaired, for safety and saving of water; and, in case of the party of the second part selling or disposing of the above-described premises and water-power, all parties, their heirs and *447assigns, bo whom such disposition or sale may be made, shall be bound by the foregoing covenants, stipulations, and agreements. And the parties of the first part reserve the right to raise the water in said pond two feet above the present height or level of the water.
“Together with, all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder or remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, or demand whatsoever of the said parties of the first part, either in law or equity, of, in, and to the above-bargained premises, with the hereditaments and appurtenances; to have and to hold the said premises as above described, with the appurtenances, unto the said party of the second part, and to his heirs and assigns, forever.”
The deed then continued to the close with the usual covenants of warranty.
Caldwell sold his interests under said deed to Cox & Throp during the same year, who leased the property for various purposes for some time, and subsequently allowed it to remain unused. The defendants purchased of Cox & Throp their interest in the west side water-power in 1881, for the purpose of operating the water-works in Three Kivers, and it is under this title the defendants claim the right to use the water from the river and pond nécessary to operate their water-works; and it is their claim that there is sufficient water for that purpose, and also to operate four run of French buhr millstones at said flouring-mill of plaintiff, if the plaintiff should take no more than is necessary for that purpose, and running the necessary machinery. It is conceded the plaintiff owns the entire water-power, except such part thereof as passed to Caldwell by his deed from Moore.
It is claimed by plaintiff that a sufficient quantity of water was reserved in Caldwell's deed at all time3 to run the plaintiff's mill with four run of French buhr millstones, and the necessary machinery, as the same was *448used under an eight-foot head in I860, — the date of the deed to Caldwell, — before any right existed to use any water by defendants, and that plaintiff is not confined, in the use of the water, to the running of the millstones, but he is entitled to -its use for any purpose, so long as he does not use more than the specified quantity; but he avers that he has been deprived of such use, and of a sufficient quantity to run his mill at all, a portion of the time, by the wrongful use which the defendants have made of the water, and brings this suit to recover his damage.
The defendants claim that their title is in fee, and absolute, to one-eighth of the entire power, and under no circumstances can the mill-owners have the prior use of any portion of the one-eiglith of the water mentioned in Moore's deed to Caldwell; that it is made appurtenant to the land conveyed by the deed, and, inasmuch as it is not shown that the defendants have used more than the one-eighth of the power or water, the plaintiff must fail to recover. These several contentions and claims of the parties present the theories upon which the case was tried at the circuit. The plaintiff prevailed, and the defendants bring error.
The case was ably presented by learned counsel upon both sides, both upon the briefs and the arguments on. the hearing, and my impressions at that time were decidedly against the defendants; and, upon a full and careful examination of the case, since then made, I am more than ever convinced that my impressions were correct.
The decision of the case depends entirely upon the proper construction of the several clauses of the deed given by Moore to Caldwell in 1860. In giving construction to the provisions of this deed, we must take into consideration the nature of the subject-matter of which *449it treats, and to which it refers; the object to be accomplished by the contract; the situation of the parties; their familiarity with the location, and its surroundings, and the property and interests to be affected; their knowledge and ability to comprehend the business and its requirements, about which they were treating; and all the circumstances accompanying the negotiations and consummation of the agreements between them. And in the light of all these things the instrument should be read. The terms and conditions of the deed were fixed and agreed upon in the contract of 1858; and the circumstances and surroundings of the parties at that- time are those which are proper for our consideration in giving construction to what the parties then did, and what they said in this conveyance.
Rock river is a small stream at Three Rivers, emptying into the St. Joseph river at that point. Mr. Moore was one of the early settlers of that village, and owned whatever water-power the stream would furnish, and early erected this large flouring-mill upon its banks, and, to secure the power to run the mill, was obliged to build a dam for that purpose, which raised the waters seven or eight feet in the river, and enabled him, by means of a race, to conduct them from the pond created by the dam to his mill in quantities sufficient to operate four run of French buhr millstones, and the necessary machinery for that purpose, except in very dry seasons, when the stream was insufficient to give him the needed power. The greater portion of the seasons, however, there was considerably more water than was necessary to successfully operate the four run of stones. The mill and the power were very valuable. The capacity of the mill was 100 barrels per day, and over, and the mill was furnished with no means of operating it other than the water-power *450mentioned. The mill and power have always been, and are now, chiefly valuable for manufacturing flour; and any decrease of the power -impairs the capacity of the mill, and to that extent renders it less valuable. It is difficult to conceive that the owner of the property could be induced to enter into any arrangement by which the power to successfully operate the mill, with its four run of stones, would be-lessened; but, if the position taken by counsel for defendants is correct, this is the very thing Mr. Moore did do in the deed he made to Caldwell. Evidently Mr. Moore did not understand such was the effect of what he had done, and no one appears to have thought such a thing had been done until the defendants claimed to have bought the Caldwell interest.
When Caldwell & Wilcox made their purchase, it was not for the purpose of establishing a large business in manufacturing, but to supply the local demand for doors, sash, and blinds in the Three Rivers community; and nothing appears in the record showing that the power they desired for their purposes exceeded that which the surplus water would give, after using all that was necessary at the mill for operating the four run of stones night and day. This was all that Moore could spare, and retain the usefulness and value of his mill and power; and this was, in all probability, as well known to Caldwell & Wilcox as to Moore. These facts, together with the other fact, that no one representing the Caldwell interest ever attempted to use more than the surplus water, except the defendants, are circumstances of very great significance in giving construction to this deed.
If it is necessary, in order to maintain the position assumed by counsel for the defendants in making the defense set up, that such an interpretation should be given to the language of this deed as would in its effect *451impeach and shock the common sense and good judgment of both Mr. Caldwell. and Mr. Mooré, I think we would be justified in hesitating a long time before adopting such position. Belying upon the interpretation given to the deed by the parties themselves and their grantees until the defendants purchased, and upon which they had all acted, it appears that large and expensive improvements had been made to the mill property until, at the time of bringing this suit, the investment amounted to the sum of about $125,000, and all of which was to the plaintiff’s advantage; and it further appears that the defendants knew when they purchased the Caldwell interest that plaintiff claimed the prior right to the use of the water to the extent necessary to operate the four run of stones at his mill, and that such had always been the construction of the deed in question, under which he claimed, and conceded by defendants’ grantors for more than 20 years; and that defendants bought with full knowledge upon the subject, and that plaintiff would protect and enforce his rights under the deed, as he claimed them, without question from the owners of the Caldwell interest. It is of no consequence whether the rights claimed by plaintiff arose under an exception or a reservation, so long as the intention of the parties to the instrument is plain; and I think it is, in this case. Cutler v. Tufts, 3 Pick. 272; Manufacturing Co. v. Whittier, 10 N. H. 305; Hill v. Cutting, 107 Mass. 597; Bowman v. Wathen, 2 McLean, 376. The consequences of a determination of the questions raised between the parties are too important to be rested on technicalities. Whatever was intended to be cbnveyed was conveyed; and a statement of that intention, or whatever amounts to that, should be allowed to control. Ousby v. Jones, 73 N. Y. 621; Morrison v. Wilson, 30 Cal. 344; Bobo v. Wolf, 18 Ohio St. 466; Garland v. Hodsdon, 46 Me. 511; 2 Devl. Deeds, §§ 836-*452839; Mathews v. Phelps, 61 Mich. 332 (28 N. W. Rep. 108).
So far as the construction of this deed by the action and understanding of the parties is concerned, it seems to have been all in favor of the plaintiff. I know it is claimed that the action and understandings referred to were principally with the tenants and employés of defendants’ grantors, and that the testimony relating thereto was taken under the objection of defendants’ counsel; but I think it was unobjectionable. Landlords are presumed to know the amount of property leased, and that tenants are informed of the same and its appurtenances; and their dealing with the property and its use are usually known to the landlords, and both are presumed to be in his interest. 2 Devl. Deeds, § 851; Truett v. Adams, 66 Cal. 218 (5 Pac. Rep. 96); Lovejoy v. Lovett, 124 Mass. 270; Lanman v. Crooker, 97 Ind. 163.
Upon the language of the deed itself, I think the fair construction is that the plaintiff shall have the first right of use of water sufficient in amount to run his four run of French buhr millstone's, and both night and day, if he chooses. There is no restriction upon the time each day the flouring-mill may be run. The deed first conveys to Caldwell an undivided one-eighth of the land flowed by the pond, or subject to be flowed by it, when Moore held the title in fee, together with an undivided eighth interest in such rights as Moore had in the other lands flowed by the pond; second, an undivided one-eighth of the Eock-river water-power, not exceeding 225 inches of water, under a head of 8 feet, and if the one-eighth failed to give that number of inches, then the deficit could be taken from the pond. Said conveyance was, however, to be subject to the following reservation as to the use of the water:
*4531. Moore was to have at all times a sufficient quantity, when properly used, to operate four run of French buhr millstones, with all the necessary machinery.
2. Caldwell was to have the next use of water, to the amount above specified, together with proper use of the river below the bridge for “tail water."
It will be noticed that the Caldwell power was entitled to water from the pond to make up its supply, so long as there was enough left therein to supply both powers. Such I understand to be the meaning of the deed, when properly construed; and such, I have no doubt, was the intention of the parties when the deed was made. And there can be no question, I apprehend, but that the quantity Moore was entitled to at his mill in 1858 plaintiff is entitled to now. Whether the power could be increased or not, by raising the dam or otnerwise, was a matter of no concern to Mr. Caldwell or his grantees. Mr. Moore and his grantees were only interested in that matter.
The rule that deeds are to be taken most strongly against the grantor only applies where its construction is doubtful. I have no doubt about the proper construction of the instrument under review. The law favors equities in giving construction to deeds, and in ascertaining their true meaning. Blake v. Madigan, 65 Me. 528; Erickson v. Land & Iron Co., 50 Mich. 604 (16 N. W. Rep. 161).
In construing a deed, all of its parts must be taken into consideration, and the bearing of each upon the others should be properly regarded; and when the parties have, in the instrument itself, expressed the intention of any particular part, while it may modify the construction to be given to other parts of the instrument, it will not necessarily control such construction.
A conveyance of land does not pass a thing appurtenant thereto, when such thing is excepted or reserved from the operation of the conveyance; and the deed of *454the undivided eighth of the land lying under the millpond, in this case, did not transfer the right to the water, or to the - use of the same, which was reserved from the operation of the deed. I find nothing repugnant in the reservation in this deed to the grant therein made. The one-eighth of the water-power on Rock river was conveyed to Caldwell, but with the reservation I have mentioned. The fact of the grant and the reservation being contained in different clauses of the deed is of no consequence, where the intention is apparent upon the face of the instrument, or manifest from the circumstances under which it was made, that the grant was to-be thus modified. The reservation once conceded, I can find no reason to question its extent. That is fixed by the quantity of water required to operate, the four run of' French buhr millstones, and the necessary machinery for that purpose, with the kind of wheels then in use in the-mill, running the mill 24 hours each day. This amount of water was reserved to the plaintiff; and he could use that amount for running his flouring-mill, or for any other lawful purpose he chose. I do not think it would be reasonable to hold that the quantity of water reserved should be limited to the amount that was being used at the date of the deed, That should not be made a controlling circumstance, when the others are taken into consideration. It must have been then contemplated by the. parties that the necessity for the use of the mill would increase as the county cleared up about it; that the grain crop would be constantly increasing; and as it was a merchant as well as a custom mill, when anything could ■ be made in the business, it would, in all probability, be run to its fullest capacity, as now and always has been in such cases with a merchant mill. I think the circuit judge gave the right instructions upon this point.
*455I find nothing further needing consideration in the assignments of error, and the judgment should be affirmed.
Champlin, J., concurred with Sherwood, C. J.