(dissenting). The view adopted by the court leads of necessity to the conclusion that plaintiff, the owner of Lake Sheldrake, has no right whatever to use the waters thereof, save, perhaps, for such relatively meagre purposes as boating and aesthetic enjoyment. By the decision now rendered, defendant is in effect accorded the exclusive right to draw water from the lake down to the natural low-water mark and thus is the only person who may draw any water from the lake.
We fear that, in focusing attention upon the reservation in question, the majority fails to give effect to the deed as a whole and overlooks the fact that the Divines, by the Greenspan deed, granted some water rights to plaintiff’s predecessors in title. That deed conveyed to plaintiff’s predecessors the lake and lands thereon abutting together with “ whatever water rights the * * * [the Divines] may have in and to the said Sheldrake Pond and the waters thereof, that are not hereinafter reserved or excepted.” (Emphasis supplied.) There then followed the disputed reservation quoted in the majority opinion, page 301. It is unusual that an owner of a lake should have no right to take and use any of its waters but it is more unusual, to say the least, that in the same deed there should appear a reservation now held to be coextensive with a grant therein contained. Before, if ever, such a construction be placed- upon a deed, it should appear clear beyond peradventure that such was the purpose of the parties. The language quoted and the *308absence from the reservation of phraseology compelling the conclusion that an exclusive right to draw water was retained by the grantors, persuade us that both parties were to have some right to draw and use the waters of the lake. This is made more clear by the fact that the Divines were the remote common grantors of both plaintiff and defendant.
The reservation adverts to pipelines ‘ ‘ tohich now exist or may hereafter be constructed ”. (Emphasis supplied.) Those words and those above discussed present at least an ambiguity in that the language used is susceptible of more than one interpretation. That being so, we must invoke the well-entrenched rule of construction that a deed shall be read most favorably to the grantee, the plaintiff’s predecessor. (Matter of City of New York [Bronx Parkway], 209 N. Y. 344, 347; Blackman v. Striker, 142 N. Y. 555, 560.) It is proper, too, in such a case to inquire as to the surrounding circumstances existing when the contract was entered into, the situation of the parties and the subject matter of the instrument. (Wilson v. Ford, 209 N. Y. 186, 196.) Both courts below considered such circumstances. Both parties agreed in both courts that the right was appurtenant to the Mill Lot. The defendant submitted to both courts a proposed conclusion of law that the right reserved was an “ easement, by reservation, for the benefit of the Mill Lot ” and conceded in her brief in the Appellate Division (p. 31) that it was “ appurtenant ” to the Mill Lot. The Appellate Division stated that the parties to the action agreed that the proper construction of the Greenspan deed was that an easement appurtenant to the Mill Lot was intended. That was the theory upon which the Appellate Division decided the case.
Proof was offered by both plaintiff and defendant, without objection by either, for the purpose of resolving the ambiguity and to establish the circumstances surrounding the execution of the deed. Parties may try a case upon their own theory and upon submission of their own evidence. The court must then decide the case upon such evidence. This was done by both the Trial Term and the Appellate Division and the parties may not change their position thereafter, and we do not think that this court may now disregard the theory upon which the case was tried, the proof submitted by the parties, and the *309affirmed findings below. In effect there was a concession by the parties that there was ambiguity in the deed and that the surrounding circumstances were relevant and material. We do not think that it is permissible now to construe the deed without reference to the proof on the trial. As we said in Flora v. Carbean (38 N. Y. 111, 113): “ It is not competent for the respondent to insist on this appeal that the evidence offered to show that the land of the plaintiff over which the right of way is claimed by the father of the defendant, belonged to Van Rensselaer when the use of the way began, was inadmissible. It was received, and, being received, the plaintiff had a right to rely upon it. If testimony tending to establish a material fact, although incompetent in its nature, is received without objection, or if, as in this case, it being objected to, is received notwithstanding the objection, the party has a right to insist upon the facts shown thereby.” (Emphasis supplied.) (See to the same effect, Matter of Findlay, 253 N. Y. 1, 11; Witmark v. New York Elevated R. R. Co., 149 N. Y. 393, 399; Crane v. Powell, 139 N. Y. 379, 384-385; Dias v. United States, 223 U. S. 442, 450.)
As was said by the Appellate Division, the existing pipelines mentioned in the reservation obviously are those extending from the lake to the mill operated by the Divines upon the “ Mill Lot ” at the time of the giving of the deed. Thus, the reservation does, in effect, make reference to the mill. Also noted by the Appellate Division was the fact that the Divines retained no lands abutting on the lake. The Mill Lot while not abutting was in close proximity, with pipes connecting it to the lake. Both Appellate Division and Trial Term found, and we agree, that the rights reserved were reserved in connection with and were appurtenant to the Mill Lot. And the majority too state that, “ Undoubtedly, the Divines made the 1919 reservation of the Loch Sheldrake water rights, because of their then ownership and operation of the mill * *
The Appellate Division in its opinion, which is referred to in the order under review, observed that the Divines in making the reservation had as their purpose the retention of water rights in conformity with then existing uses. The Divines were engaged at the time of the conveyance in selling some water, *310to the Evans Hotel but the water so sold was merely tail race water, i.e., water discharged after use in the mill. Hence, to continue that use, the Divines needed only to reserve a right to draw such water as was required for their mill. And, that, in light of the circumstances, was the true purpose of the reservation and the reason for the mention of the pipelines, quoted (supra).
The situation is no different from that which would obtain had the deed been more artfully drawn and expressly recited that the Divines reserved a right to draw water for the mill. In that case and in the absence of a clear expression of a contrary intent, mention of the mill would be properly understood as fixing the quantity of water which could be drawn and not as a limitation upon the use to which it could be put or the place in which it could be used. Numerous authorities to that effect are cited in the Appellate Division opinion. Although the right reserved thus be of the kind commonly considered appurtenant to a dominant tenement or as in some manner connected therewith, the same rule should be applicable in reason and on principle since, where a quantitative restriction is thus established, limitations as to method or place of use of the water needlessly restrict benefits otherwise redounding to the holder of the water right and to the 'community as a whole since the absence of such limitations does not enlarge the burden imposed upon those subject to the right. (See Gould on Waters [3d ed.], § 320, p. 612; 3 Farnham on Waters and Water Rights, § 764, p. 2286; Comstock v. Johnson, 46 N. Y. 615.) Thus, it is written in Gould on Waters (§ 320): “ When the easement is of a certain quantity of water, the owner is not bound to use it in a particular manner, though the purpose for which it is used is mentioned in the grant. He may use the water in a different manner or at a different place, or increase the capacity of the machinery which is propelled by it, without affecting his right, if the quantity used is not increased and the change does not prejudice the rights of others. This rule applies both to reservations and grants.”
Consequently, we are of the view that defendant here is entitled to draw that quantity of water customarily drawn by the Divines at the time of the giving of the Greenspan deed. *311That quantity may be used anywhere and for any purpose, as we have indicated, and it is thus properly used in connection with the hotel.
Defendant’s right to that quantity of water is, of course, a paramount one but plaintiff is entitled to draw and use waters of the lake in a manner not inconsistent therewith. The reference in the reservation to the natural high- and low-water marks of the lake merely sets the outer limits within which the right to draw and impound water may be exercised. It may very well be (a) that the quantity of water to which defendant is entitled is less than that which lies between the natural high- and low-water marks or (b) that there may be periods, seasonal or otherwise, when defendant has neither need nor desire to draw all the water to which she is entitled, whatever quantity that may be. To hold that the reservation accords to defendant an exclusive and absolute right to draw water from the lake is, in our view, unwarranted by and is indeed contrary to the language of the conveyance, the intent of the parties and settled rules of construction.
Insofar as we believe that the right of defendant is paramount as to the amount of water customarily drawn by the Divines for use on the Mill Lot at the time of the delivery of the G-reenspan deed but not exclusive, we think that the order of the Appellate Division should be modified. We think that such amount of water may properly be determined upon the trial of the issues remaining in the action and still to be tried under the stipulation entered into by the parties under section 443 of the Civil Practice Act.
The order appealed from should be modified in accordance with this opinion and, as so modified, affirmed, with costs. The. first question should be answered in the affirmative, the second question not answered.
Dye, Fboessel and Van Voobhis, JJ., concur with Desmond, J.; Conwat, J., dissents in opinion in which Lewis, Ch. J., and Ftjld, J., concur.
Order affirmed, etc.