Opinion
December Term, 1841.
A. was entitled to two tracts of land, an upper and a lower tract, and the water from the former was drained off by ditches running through the latter. By deed dated 12 May, 1797, he conveyed to his son Jones the lower tract, "a privilege of two leading ditches to Tucker Spencer excepted," and by deed dated 13 May, 1797, conveyed to the said Tucker Spencer, another son, the upper tract, but without saying anything of the privilege of those ditches. Held, that even admitting the words in the deed to Jones to have amounted to a grant of the privilege to Tucker, still there is nothing to annex that grant to the upper tract of land, and transmit it with the land to an assignee.
APPEAL from Settle, J., upon a case agreed at HYDE, Fall Term, 1841. The case was as follows, as reported by the presiding judge:
J. H. Bryan for plaintiff.
No counsel for defendant.
It is an action on the case, brought by the plaintiff to recover damages from the defendant for his flowing the water that fell upon his land, which is situated above the plaintiff's, down into, through, and along a ditch situated on the plaintiff's land. It was admitted that the defendant had flowed his water into the through the ditch on the plaintiff's land, within three years next before the suit brought, and he claimed a right to do so under two deeds made by Edward Spencer, the owner of both tracts, to his two sons, Jones and Tucker, under the former of whom the plaintiff claims and has title as his heir at law, and under the latter of whom the defendant claims and has title. The deed to Jones Spencer is dated 12 May, 1797, and conveys to him the lower tract, describing it, and immediately following the description contains these words: "a privilege of two leading ditches to Tucker Spencer excepted." It is admitted that the ditch now in question was one of those ditches. The deed to Tucker Spencer is dated 13 May, 1797, and conveys to him the upper tract of land, but says nothing of the (97) privilege of the ditches mentioned in the deed to Jones. If the defendant has the right he claims, then judgment is to be rendered for him; but if not, then judgment is to be rendered for the plaintiff and sixpence damages and his costs of suit.
His Honor rendered judgment pro forma in favor of the plaintiff, and the defendant appealed to the Supreme Court.
The deed to Tucker Spencer is silent as to the easement which is the subject of this suit. Moreover, the case states nothing respecting the enjoyment of the easement by either the defendant's father or himself. So there is no ground for presuming any grant for it, other than that appearing upon the face of the deed from Edward, the father, to the plaintiff. After conveying the land, that deed has this clause: "a privilege of two leading ditches to Tucker Spencer excepted." The question is whether that gives the right to the defendant to use those ditches. It is morally certain that it was expected that the water from the upper tract of land would, and intended that it should, be always drained by the ditches through the lower one; and it is probable that the deeds, though bearing the dates of succeeding days, were both executed together, and were designed by the father as one instrument, settling different parts of his land on his two sons as a family arrangement. But at present we can take notice of nothing of that kind, but must look to the terms of the instrument; and we are sorry to be obliged to say that they do not sustain the defendant's claim. Without stopping to consider whether the provision quoted can be regarded as a condition merely, it may be admitted most strongly against the plaintiff that the words amount to a grant to Tucker Spencer, the defendant's father. Still there is nothing to annex the grant to the upper tract of land and transmit it with the land to an assignee. Indeed, the deed to (98) Tucker Spencer was not made until the day after, as is to be inferred prima facie from the dates of the deeds. The grant was, therefore, personal to Tucker Spencer, and the right to the easement expired, at all events, with his life, and did not come to his son and heir, the defendant.
PER CURIAM. Affirmed.