
    Charles Coe against Noah Talcott.
    of conveying water °of *a brook across foj^lands^of A. as administrator of the estate of B. under authority of a decree of probate,sold certain lands of the intestate to C, for the payment of debts ; and by the same deed,granted to C. a special privilege the intestate, upon the land sold; the land on which this privilege was granted, was afterwards, legally distributed to A. as heir at law of B. — A. after-wards conveyed this land by deed, without any reservation of the special privilege granted to C. And aftersun-dry legal conveyances and dispositions, the title to the land dis-tributedto A. . . became vested in D. and the title to the land granted by A. to C. became vesiea m A, in an action brought by E. against D. for obstructing the passage oi the water through the land of the defendant, it was held, that the defendant was estopped to deny the right of A. to grant the special privilege as set forth in his deed to C.
    
    THIÉ was an action 0¾ the case. If was alleged;¾⅛⅜⅝ declaration, that the plaintiff was the proprit for and p&ss%S-sor of a certain piece of land in Durham, in the cónStjr of Middlesex, containing about nine acre? ; that near this piece of land, a perpetual stream of water took its rise, and ⅛ 1⅜ naturai course, flowed upon, and across th<* liefcodaút’s land, to the land of the plaintiff before mentioned, over which it had immetnorially flowed; and that the plaintiff possessed a right to use such stream of water to fertilize his land,
    it was also alleged, that in addition to the right Of Using the water of such stream flowing in it? natural course, the plaintiff was vested with a special right to divert the one hail of such stream of water from its natural course, and to turn it across the defendant’s land ia such a manner as to cause it t° flow upon the land of the plaiuiiff, and for that purpose, to enter upon the defendant’s land and plow and dig the soil; and that such special right had been enjoyed by the plaintiff, and those under whom he claimed, for more than thirty years. It was then averred, that great benefit resulted to the plaintiff from the use of the water in the manner above stated ; and that from the 13th day of March, 1894, to the time of bringing the action, the defendant had obstructed the plaintiff in the enjoyment of such special right, by damming up the trench which had been made for lbo purpose of conveying the one half of such stream of water upon his land, and had also, during the same period, deprived him of the use of the water flowing in its naturai course, by damming up the channel of the principal stream ; whereby the water was wholly diverted from the plaintiff's land, Szc.
    
    On the trial of the cause, the plaintiff, to establish his right of recovery on the ground of the special privilege alleged in tin; declaration, ¡¡induced in evidence to I lie jury, a deed from Hizckiah Tuladl to Jam, -, Arnold, nf lije following tenor, to wit, To :dl people to whom these prc-'-nits shah come, Greeting : Whereas she (tenoral Assembly hold at Ncw-llavai, on the second Thur.-day off) etobrr, A. I). 17 CO, did empower Ihzckiah Tul val!, of Durham, i it the county o! ,;Verr-Haven, in the Colony of Connect icid, in Ainu England, administrator oil the estate of John Talcott, late of said Durham, deceased, to sel! so much of the real estáte of said Jo ceased as would produce the sum of 1181. 9s, 3d. lawful money, with incident charges arising on said sale, taking the direction of the court of probate for the district of Middletown, therein : And whereas a court of probate, held at Middletown, on the 5th day of January, A. D. 1767, did direct said Hesekiah Talcott to sell so much of the real estate of said deceased as will produce said sum of 1181. 9s. 3d. lawful money, with the incident charges arising, at private sale, if he can get the inventory price, and to give deed or deeds accordingly. Therefore, I tho said Hesekiah Talcott, by virtue of the power to me given by said General Assembly, for the consideration of fifteen pounds, received to my full satisfaction, for the purpose of defraying the debts of said deceased, of Janies Arnold of Durham aforesaid, do give, grant, bargain, sell, convey and confirm unto the said Arnold, his heirs and assigns forever, one certain piece of land lying in said Durham, being part of the real estate of said deceased, containing one acre, being 38| rods in length, and 4 rods and 2 feet and 3 inches in width ; bounded, &c. together with a liberty of plowing or digging in the land of said deceased, and thereby turning into said Arnold’s land, one half of a small brook which runs across the highway, which is at the east end of said land : To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto the said James Arnold, &e. By this deed, the grantor, for himself, his heirs, &c. covenanted with Arnold, his heirs, &c. that John Talcott, at his decease, was seised of the premises in fee, that be had good right so to bargain and sell the same* and that the same were free from all incumbrances, &c.
    i l was admitted on the trial, that Hesekiah Talcott was one of the heirs at law of John Talcoll, deceased, and that subsequent to the execution of his deed to Arnold, above recited, the land mentioned in the declaration as belonging to the defendant, and through which the plaintiff claimed the right of conveying the water to his own land, was distributed to Hesekiah'as part of the real estate of the deceased ; and that afterwards, Hesekiah, by his deed, containing the usual covenants of warranty and seisin, conveyed the same land of his brother Daniel Talcott, also one of the heirs at law of John Talcott ; and that David Talcott, the father of the defendant, died seised thereof. It was proved, that Thomas Lyman, administrator of the estate of David Talcott, by his deed, dated the 26th day of March, 1788, under authority of a decree of the court of probate for the district of Mid-dletown, granted the same land to the defendant.
    The deed from Hesekiah Talcott to David Talcott, contained no reservation of the special privilege relating to the use of the water, as set forth in this deed to Arnold ; and in the deed from Lyman to the defendant, no mention was made of such privilege. The court in their charge, instructed the jury, so far as respected the right of the plaintiff to the special privilege derived from Hesekiah Talcotts deed to Arnold, that the defendant was estopped to deny the right of Hesekiah to convey such special privilege in the manner expressed in his deed. The jury, thereupon, returned a verdict for the plaintiff; and the defendant moved for a new trial, on the ground of a misdirection ; which motion was reserved for the opinion of the nine Judges.
    
      Dairgeit, in support of the motion,
    contended,
    1. That the defendant is not estopped to deny the right of Hesekiah Talcott to grant the special privilege claimed by the plaintiff. The defendant holds the land by purchase, and not by descent; and it does not vary the case, that he stood in a relation by which he might have taken the fcstate as heir. 4 Com. Bis:, tit. Estoppel. C. P. 80. Syms’’ case, 8 Co. 53. ft. 54. a. GoodtiÜe v. Morse, 3 Term Rep. 371.
    2. Hesekiah Talcott, in granting the special privilege t© Arnold, acted without authority. His powers were merely •Jiose of an adminisíraíor; lie was authorized lo «.->11, lmt he certainly would not grant any special privilege out of the lands of the intestate. He acted as a trustee for the other persons ; and his declarations could neither bind purchasers, nor the heirs of John Talcotl. We ought, therefore, to Stave been permitted to controvert the right of Hezihiah Talcotl to convey the special privilege claimed by the plaintiff. Tap-pendm v. Burgess, 4 East, 230. Fairütle v. Gilbert, 2 Term Hep. 169.
    
      Hosmer and E, Huntington, contra,
    insisted that by the law-relating to Estoppels, the defendant was bound by the act of Hcsekiah Talcotl. They cited 2 Black. Com. 295. 3 Black. Com. 308. 4 Com.Dig. 74,77. til.Estoppcl.{C.) Co. Lett. 352. a. Shelly v. Wright, Willes, 9- Rsmlyn’s case, 4 Co. 53. Ishamv. Mortice, Cro. Car. 109. Trevivan v. Lawrence et al. 6 Mod, 258. S. C. 1 Salk. 278. S. C. 2 Ld. Raym. 1048.
   Trumbull, J.

John Talcotl died seised in fee of the land novt' owned by the plaintiff, and also of another piece of land adjoining, through which run a small brook of water. His personal estate proved insufficient to pay all his debts. llezekiah Talcotl, one of his sons and heirs, took administration, and obtained from the General Assembly a power to sell so much of the real estate of said John, as would pay and satisfy the deficiency. In pursuance of that power, he sold to James Arnold in fee, by deed of bargain and sale, the land now owned by the plaintiff, together with a liberty of plowing or digging in said other piece of land, and thereby turning into said Arnold’s land one half of said brook; and for himself, his heirs, &c. covenanted with the said Arnold, his heirs and assigns, that he had good right so to bargain and sell the premises, and that the same were free from all incumbrances whatever.

In the settlement of the estate, the said other piece of land was distributed and set off to said Hcsekiah, as' one of the heirs of said deceased. Hcsekiah afterwards conveyed it to David Talcotl in fee, without any reservation in the deed of the privilege in said brook to Arnold, and his assigns. The title acquired by Arnold, ia legally vested ia the plaintiff, a ad ilio title oi David in tin* defendant.

On iiie trial of the cause, the court instructed and charged the jury, that the defendant was estopped to deny the right of Hesekiah to convey the said special privilege, in the man-nerset up in said deed. .. ..

The plaintiff obtained a verdict and judgment. The defendant now moves for a new trial, on the ground, that said charge is erroneous.

Hesekiah Talcolt, at the time when he executed the deed to Arnold, had not a right to grant this privilege. A power given to sell lands, carries with it no authority to carve out a privilege, or create an easement, upon any lands not sold by the trustee. The deed did not, of itself, convey the privilege ; it only gave to Arnold a rigid, of action against llcsc-kiah and his heirs, on the warranty.

A trustee acting within his powers, does not render himself liable on his contracts and conveyances ; but whenever he exceeds his powers, and undertakes to transfer and convey without authority, he becomes personally answerable to the grantee on his covenants. The land now owned by the defendant, in which this privilege of digging a channel and drawing off one half of the brook, is granted and warranted, by the deed, was afterwards distributed in fee to said Hesekiah, the grantor, towards his proportion, as one of the heirs of the estate of said John Talcolt, deceased.

By the clearest principles of law, from the moment that he became vested, in this manner, with the title of this land in fee, Hesekiah and his heirs were forever estopp'ed from denying his right to grant and convey the said privilege, in manner and form, as contained in said deed to Arnold. But a question is made, whether the defendant, who claims as purchaser of David’s title, and privy in estate only, is estop-ped also, by reason of the estoppel of David and Ms heirs, under whom he claims ? I think it is equally clear, that he is estopped ; that this estoppel runs with the land ; and that he can claim no other or better title, or more beneficial interest, than what his grantor had in the land ; and by copse quence, he had power to convey.

in Sir IV. Jones’ Rip. ¡99, it is holden, “ tliat estoppels ns fait. and !>y record by fine or recovery, shall bind not only the party to the estoppel, but also all privies who claim under him.” In Trevivan v. Lawrence & al. 6 Mod. Rep. 256. Holt, C. J. in delivering the opinion of the court, lay* down the principle, “ that if a man make a lease,by indenture, of land which is not his, and after purchase it, the lease shall hind him, his heirs and assigns, and an estoppel that affects the interest of the land, shall run with it, to whosoever takes it.” The same case is also reported in 2 Ld. Raym.i036, and 1048. and in 1 Salk. 276. and the same principles agreed to, by the whole court. The authority of these cases is admitted in the case of Goodtitle v. Morse, 3 Term Rep. 365. In that case, the estoppel claimed was not created by deed or warranty, but by surrender of a copyhold estate by an heir at law, in the life time of his ancestor. And although Lord Kenyon expressed some doubt, what the case would be with respect to freehold estates, and thought that all the cases relative to estoppels were not easily to be reconciled, his doubts arose merely from the rule in Litt. s. 446. p. 265. that a bare release of ail right, by the heir in the life time of the ancestor, creates no estoppel, because the heir had no right at the time of the release ; and from the comment on it by Coke, who notes a diversity between a release1, a feoffment and a warranty, as to their effect in creating a bar or an estoppel. None of these doubts affect the present question.

Lord Coke, in his commentary on Littleton, s. 667. p. 352. lays down the rule, that “ Privies in blood, as the heir ; pri\ irs in estate, as the feoffe, lessee, &c. ; privies in law, as the lords by escheat; tenant by curtesy ; tenant in -dower ; the incumbent of a benefice; and others that come under by act in law, or in the post, shall be bound, and take advantage of estoppels.” I hold this rule to be good law, and conclusive in the present case.

1 ant therefore of opinion, that the charge to the jury was right, and that no new trial ought to be advised.

The other Judges severally concurred in this opinion.

New trial not to be granted.  