Brigham v. Ross

• Decision Date: 31 January 1887
• Citation: 55 Conn. 373,11 A. 294
• Court: Connecticut Supreme Court
• Parties: BRIGHAM v. ROSS.

11 A. 294

55 Conn. 373

BRIGHAM

v. ROSS.

Supreme Court of Errors of Connecticut.

January Term, 1887.

J. L. Hunter, for appellant. John M. Hall, for appellee.

PARK, C. J. This case depends upon the construction to be given to the deed to the plaintiff's grantors of June 1, 1807 That deed conveyed a tract of land by particular description to the grantees, their heirs and assigns, and then proceeded as follows: "And also the right, privilege, and benefit of opening a ditch on our land, in the most convenient place, twelve feet wide, with proper and convenient room to throw the earth, to convey the water from the Willimantic river to the aforesaid premises, for the purpose of carrying a grist-mill, saw-mill, and any other water-works that may be erected on the premises; and also the like liberty is hereby given to said grantees to open a sufficient and proper ditch to drain the water from the above premises to the said river; said ditch to be made in the most convenient place, doing the least damage."

The case finds that the plaintiff is the owner of all the rights conveyed by the deed; that when the deed was given the grantors owned a tract of land bounded westerly, for about three-fourths of a mile, on Willimantic river; that from the upper to the lower line of this tract there was a fall of about 14 feet and 4 inches in the river; that the grantees went into possession of the premises conveyed by the deed, built a mill upon them, and used all the fall of the river in the running of the mill, drawing the water from it at the upper end of the tract, and returning it at the lower end; and that, from the time the deed was given to the present time, all the fall has been so used by the original grantees and those holding under them.

We think the construction which the parties themselves have put upon the deed for this long period, under which the plaintiff and his grantors have' claimed and used the entire fall from the upper to the lower end of the tract, is the proper one. The deed contains no reservation of the fall,—no limitation of the right conveyed; but, on the contrary, uses language adapted to a conveyance of the entire fall on the grantors' land. The grantees had the right to take the water of the river to their mill from the upper line of the grantors' land, as they did, and return it to the river at the lower extremity of their land, for by the terms of the deed they were required to consult only their own convenience in the matter. Besides...