Randall v. Silverthorn

• Decision Date: 06 October 1846
• Citation: 4 Pa. 173
• Parties: RANDALL <I>v.</I> SILVERTHORN.
• Court: Pennsylvania Supreme Court

4 Pa. 173

RANDALL v. SILVERTHORN.

Supreme Court of Pennsylvania.

October 1, 1846.

October 6, 1846.

Oct. 1.

IN error from the Common Pleas of Erie county.

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Marshall and Sill, for plaintiff in error.—The evidence shows there was no right in the plaintiff from the natural flow of the water, but it belonged to defendant, over whose land the stream ran, until a better right was shown in another. The will of William, the father, expressly excepts the twenty-eight acres from its operation, and it there appears, that Abraham had a paramount title, which could not be clogged or affected by any thing therein contained. But the plaintiff is estopped by his deed, which is a conveyance without reservation, of the land free of encumbrances. By putting this deed on record, the plaintiff can never claim against the terms of his own conveyance. Woods v. Farmere, 7 Watts, 382, is full to the point, that notice by possession is immaterial against the effect of such a proceeding. 2 Penna. Rep. 277; 4 Kent's Com. 467, 468. The same rule prevails as in the case of fraud; an innocent vendee is not affected where the acts of one has put it in the power of another to defraud him.

Galbraith, contra.—The deed of 1818 is plainly intended to pass a legal title to Abraham in the land given him by his father, and which, with the rest of the tract, had been conveyed to Isaac, who was directed by his father's will to pay the purchase money due thereon. That will operated as a grant to Abraham of twenty-eight acres, and of the water-right as an appurtenant to the mill, separated from the twenty-eight acres over which it ran, so as to pass by conveyance of the mill. Strickler v. Todd, 10 Serg. & Rawle, 67; Ang. on Water Courses, 23; 4 Dall. 211; Worrall v. Rhoades, 2 Whart. 427. The covenant does not extend to this right, not being an encumbrance; hence, possession was notice of its being excepted. That the water must be returned, as laid down by the judge, is settled, Colburn v. Richards, 13 Mass. Rep. 420.

Oct. 6. GIBSON, C. J.

It would hardly be disputed, that Isaac Silverthorn had title to the water-right at the date of his deed to his brother Abraham. The reservation of it in their father's will, though with a declaration that he had before given Abraham this part of the tract, and the fact that the water had been diverted to the mill with Abraham's acquiescence in the father's lifetime, would be evidence to a jury that the whole was a family arrangement, and the basis of the devise. Besides, Abraham had a legacy by the will, and if he received it, he precluded himself from contesting his father's power to dispose of any thing he had before given him; for no one who has taken a benefit under a will can object to any part of it. It is not a part of the case, however, that the legacy was paid, and no question of election was made at the trial. Beyond all that, the undisputed use of the water, according to the will, for more than twenty years, had...