stated, was repugnant to the terms of the grant, and had not the effect of an exception. In this case, the party owning land adjoining one side of a stream, and also owning the bed of the stream, conveyed to another owning land adjoining the stream on the other side thereof, the land under water to the middle of the stream, reserving to himself the right to butt a dam on both sides or shores of the stream, as he should think necessary. This reservation, the Court held, could not have the effect of an exception; the ground of their opening being, that it was indispensable to a good exception, that the thing excepted should be part of the thing granted, and not of any other thing. It was, however, considered by the Court, that the reservation was operative as an implied covenant or by estoppel, securing the right provided for the reservation. Sutherland, J. who delivered the opinion, observed as follows :-"The deed is to be construed as though the parties had mutually covenanted with each other, that each should have a right to butt a dam upon the shore of the other; and, considered in this point of view, I see no ground for contending that it was the intention of the parties that the grantor should have a greater right in the use of the water than the grantees. Nor is such a conclusion to be drawn from a reservation by the grantor of a right to use the water from the dam or dams which might be erected by the grantees, upon his paying such proportion of the expense and charges of erecting such dam on dams as shall be adequate to such use. Supposing the grantees had expressly covenanted that the grantor should have a right to use the water from their dam, on paying a reasonable proportion of its cost; it certainly would not be a rational construction of such a covenant, that the covenantee should have the right

to take the whole of the water, whenever he thought proper to pay the whole expense of the dam, or two thirds, or three fourths of it, as his caprice or convenience might dictate; and a more liberal construction cannot be given to an implied covenant, or a reservation, made by the grantor in his own deed. Every exception, or reservation, is the act of the grantor, and shall therefore be construed most strictly against him, and most beneficially for the grantee.1 It appears to me to have been the virtual intent of the parties to establish an equality of right in the use of this water; and such in my opinion, is the legal construction and effect of the conveyance in question."

3

2

A reservation may sometimes be implied, as where the river, or an island in the river, was previously granted. Thus, in Hatch v. Dwight, E. in 1807, mortgaged a strip of land, including mills, and running a considerable distance along a river; but in 1810, having sold a small piece of the mortgaged premises, for a hide mill and lime vats, he obtained a grant, or rather release from the mortgage, for a nominal consideration, of what he (E.) had sold, described thusbeginning at the end of a dam, running up the river two rods, and so round to the bank of the river. mortgagee afterwards having foreclosed, one question was whether the grant or release gave a right to the centre of the river; and it appeared, that if it was to have this effect, it would destroy the value of the mortgagee's mill privileges. The Court held that it was not to be inferred that the mortgagee intended to

1 10 Coke, 106, b. Com. Dig. Tit. Fait E. 8.

The

2 Case v. Haight, 3 Wend. (N. Y.) Rep. 632; and vide Butz v. Ihrie, 1 Rawle's (Penn.) Rep. 218; and Arthur v. Case, 1 Paige's (N. Y.) Ch. Rep. 447.

3 Lunt v. Holland, 14 Mass. Rep. 151.

release every thing valuable in the mortgaged premises, for which she had given a large consideration; they considered the release, under all the circumstances, as being no more than a mere exception in the mortgage, and they said, "the description in the release clearly excludes any part of the stream."1

Sec. V.-The Mode of Conveying a Water Right as an Incorporeal Hereditament.

The ceremony required by law for the creation of a right to divert or detain a watercourse, (as in the creation of all incorporeal hereditaments) is a deed, devise or record; and as the same ceremonies are requisite in the transfer of a right which were requisite in its original formation, a water-right as an incorporeal hereditament, can only be assigned by deed, devise, or record.2

A grant of the use of the water merely, it was held in Bullen v. Runnels, in New Hampshire,3 must be in writing, and recorded. In another case, the declaration stated that one A was seized in fee of a messuage or inn, and yard thereto adjoining, and by indenture demised the same to the plaintiff for a term of years, which was undetermined; that defendant was possessed of a certain other yard, next to and adjoining the premises of the plaintiff, as tenant thereof to A B ; and the defendant and his landlord granted to A, his

1 Hatch v. Dwight, 17 Mass. Rep. 289.

2 Fentinam v. Smith, 4 East's Rep. 107; Curtis v. Jackson, 13 Mass. Rep. 517; Wetmore v. White, 2 Caine's (N. Y.) Cases 87; Thompson v. Gregory, 4 Johns. (N. Y.) Rep. 81; Russell v. Scott, 9 Cowen's (N. Y.) Rep. 279; v. Deberry, 1 Hayward's (N. C.) Rep. 248. 3 Bullen v. Runnels, 2 N. Hamp. Rep. 255.

heirs and assigns, license and authority to make and construct, at the cost of A, a certain gutter or drain, from and out of the said messuage or inn, into and across, and out of a certain part of the yard of the defendant, unto and into the yard of the plaintiff; and that A, his heirs and assigns, and his farmers and tenants, occupiers of the messuage and yard, should have the foul water collected in the scullery of the said messuage or inn, to run and flow from and out of the same, through and along the said gutter or drain, into, upon, over, across, and out of the said part of the yard of the defendant unto and into the yard of the plaintiff, for so long time as need and occasion should require, for the convenient occupation of the messuage, or its appurtenances. Breach that the defendant, without notice, obstructed the drain. Another count stated the grant to be for so long time as the defendant should be and continue in possession or occupation of said last mentioned land, or, so long as the same should be requisite for the convenient occupation of the messuage. It appeared in evidence, that the license to construct and continue the drain was by parol; and it was accordingly held, that as the right claimed in the declaration was a freehold right, assuming it was an easement only upon the land of another, and not an interest in the land, it could not be created without deed.'

1 Hewlens v. Shippam, 5 Barn. & Cress. 210, and 11 Eng. Com. Law Rep. 207. See also on this subject, Mr. Hilliard's valuable Abridgment of the American Law of Real Property, vol. II, p. 52.

A

Sect. VI.-How a Water Right as an Incorporeal Hereditament, may be extinguished by Unity of Possession.

The right of using the water of a river, when diverted from its natural bed, (like any other incorporeal hereditament, or servitude) is subject to be extinguished by unity of possession. The general rule is, that every servitude is extinguished when the estate to which it is due, and the estate owing it are united in the same hands.1 If, therefore, A own a separate parcel of land,

1 Hazard v. Robinson, 3 Mason, (Cir. Co.) Rep. 172; Surry v. Pigott, Popham, 166. The civil code of Louisiana contains the following provisions as to the extinction of servitudes by unity of possession.

ART. 801. Every servitude is extinguished, when the estate to which it is due, aud the estate owing it, are united in the same hands.

But it is necessary that the whole of the two estates should belong to the same proprietor; for if the owner of one estate only acquires the other in part, or in common with another person, confusion does not take effect. ART. 802. If the union of the two estates be made only under a condition, or if it cease by legal eviction; if the title be thus destroyed either by the happening of the condition or by legal eviction, the servitudes revive, which in the mean time, will have been rather suspended than extinguished.

Thus the exercise of redemption, the happening of the condition on which the estate terminates, the eviction from a succession by a nearer heir, the abandonment or relinquishment of an estate on account of mortgages, will revive all the servitudes, active and passive.

ART. 803. Confusion takes place by the simple acceptance of an inheritance, if there be but one heir.

If the heir who has thus accepted an inheritance, disposes of any estate belonging to the succession which is subject to any servitude towards his estate, without any stipulation for the preservation of his right of servitude, the estate thus alienated, which owed the servitude, remains free from it, in consequence of the confusion which had taken effect while the estate remained in his hands.

ART. 804. But if the heir, under a simple acceptance, sell to a person the whole of his rights in the succession he has received, the sale prevents the confusion, and the estate belonging to the succession will continue to have the rights of servitude previously due to it, or be charged with the servitudes imposed on it, in the same manner as if it had not passed