Blood v. Millard

• Decision Date: 20 October 1898
• Citation: 172 Mass. 65,51 N.E. 527
• Parties: BLOOD v. MILLARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 65

51 N.E. 527

BLOOD v. MILLARD.

Supreme Judicial Court of Massachusetts, Berkshire.

October 20, 1898

The following is the report:

"This was a bill in equity brought April 27, 1897, to restrain the defendant from using water of a certain spring situated on defendant's land, and called 'Oak-Tree Spring,' and from interfering in any way with the plaintiff's rights in said spring. The plaintiff also in October, 1897, filed by leave of court a supplemental bill, setting up additional rights which he claimed to have acquired to take and use the water of said spring. *** At the hearing before me, the following facts appeared: Prior to September 15, 1857, David Richmond, under whom both parties claimed, was the owner of two large tracts of land (one, of about a hundred acres, on the easterly side, and the other, of about fifteen acres, on the westerly side, of Church street) in North Adams. Upon the first tract, and about one-fourth of a mile from the other tract, was the spring of water in question. In September, 1857, Richmond by deed conveyed to Edward P. Hunt, his heirs and assigns, forever, the second or westerly tract, and, in the following words quoted certain rights to said spring, and other rights in connection therewith, viz.: 'Also conveying the right to a trench or ditch, and to lay pipes therein, from the aforegranted premises to the "Oak-Tree Spring" (so called) in said Richmond's pasture, and the right to take the water of said spring, through said trench and pipes, onto said granted premises; leaving at all times a sufficient and convenient watering place, of fresh water for cattle and other stock, near the head of the spring. Also, the right to go upon said Richmond's land, in a prudent and careful manner, to construct and repair said pipes and ditch, when necessary, and to do in the same manner such other things as necessarily appertain to the occupancy of said rights and privileges; meaning hereby to convey all the right which I have to the water at and near the head of said spring, except the afore-mentioned watering place, which is reserved, and all the right which I have to take the same across the public highway; the ditches to be all filled, except in the wet land, where they may be left open to concentrate the water. After said pipes are once located and laid, their location shall be and remain permanent.' This land and the rights to the water passed by several mesne conveyances, under the same description, to William S. Blackinton, who by deed dated March 22, 1875, conveyed the same, under the same description, to Franklin R. Blackinton; and said Franklin R. had the land plotted into building lots and placed on the market about 1887, and shortly after some lots were sold, and houses built, and these houses were supplied with water by the city of North Adams. On June 19, 1889, said Franklin R. Blackinton made a deed to John L. Scott, under whom the plaintiff claims the right to the water of the spring, as stated in his original bill. The description in said deed is as follows: 'The right to take and carry away the water of a certain spring, known as the "Oak-Tree Spring," situated on a certain parcel of land [being the land now owned by defendant], with the right to enter upon said premises for the purpose of taking said water, and also all the privileges pertaining to said spring and water therein conveyed to me,' which were the same privileges mentioned in the deed of Richmond to Hunt. No land was conveyed by this deed, and neither said Scott nor the plaintiff ever owned any part of the tract of fifteen acres conveyed by Richmond to Hunt, and afterwards owned as aforesaid, by said Blackinton. But said Scott was then the owner of certain land, being a part of the easterly or larger tract formerly owned by Richmond, and this is the same land now owned by the plaintiff; having been conveyed to the plaintiff by the heirs of said Scott on or about April 1, 1893, together with the rights to the spring obtained by the deed aforesaid from Blackinton to Scott. This land had appurtenant to it no right to the water of said spring. May 9, 1866, David Richmond conveyed to Jerome B. Jackson and another, by warranty deed, all the lands on the east side of Church street, being Richmond's larger tract above mentioned; and immediately following the description of the land was the clause, 'Excepting out of the above-bounded premises the Oak-Tree spring, and privileges therewith, conveyed by said Richmond to Edward P. Hunt.' November 1, 1866, Jackson conveyed to William Martin the same premises, by warranty deed containing the following clauses: 'Being the same premises as conveyed to us by David Richmond and wife by deed dated March 9th, 1866. Excepting and reserving the same rights and privileges as therein mentioned, reference being had to said deed for the same.' February 1, 1869, Martin conveyed this land by warranty deed to Eli T. Clark, without any mention of any right in the spring, or any rights connected therewith, belonging to other persons. November 6, 1872, Eli T. Clark and Frank Davis, who had become a joint owner, conveyed in fee to said Martin, by quitclaim deed, the following (quoting from said deed): 'All our right, title, and interest in and unto a spring called the "Oak-Tree Spring," located about twelve rods

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