
    Jerome R. Petrie, Appellant, v. The Trustees of Hamilton College, Respondent.
    
      Watercourses—eonst'ruction of a ¡¡rant thereof.
    
    In an action brought by the owner of a farm to prevent the defendant from diverting the waters of a stream, it appeared that the defendant claimed under an instrument executed by the plaintiff, which granted to the defendant “the right, privilege and easement to take from and divert the water of Kirkland Glen brook which runs over my land in the town of Kirkland, Oneida, N. Y., sufficient to supply the Hamilton College water works about tobe constructed.” The referee who bad been appointed in the case found that two small brooks had for some years flowed across the farm in question, the sources of which were springs over 500 feet apart, upon the lands of other parties; that the brooks flowed separately across the land of the plaintiff at a distance from each other of over 500 feet, and continued thus to flow for a distance of , about three-quarters of a mile from their sources; that they then united below the land of the plaintiff, and flowed in one stream for about two miles to the Oriskany creek. ' He also found that, until the time of the making of the grant in question, this stream had no name, and was designated in the grant as Kirkland Glen brook, and that neither of the brqoks flowing across the plaintiff’s land had any known name. He did not find specifically just what was covered by the instrument executed by the plaintiff, but he dismissed the complaint.
    
      Held, that the decision was erroneous;
    That the expression “ waters of Kirkland Glen brook,” was descriptive of one brook only, and consequently that was all that the instrument conveyed to the grantee, who was, therefore, entitled to restrain the defendant from appropriating the water of both the brooks.
    Appeal by the plaintiff, Jerome R. Petrie, from a judgment of the Supreme Court in favor of tiie defendant, entered in the office of the clerk of the county of Oneida on the 13th day of January, 1896, upon the report of a referee dismissing the plaintiff’s complaint.
    The complaint in this action alleged, among other things, that the jflaintiff, Jeróme R. Petrie, was the owner of certain real premises situate in the town of Kirkland, Oneida county, N. Y., consisting of a farm of about fifty-six acres of land.
    That two brooks or living streams of water, with well-defined channels and banks, known and designated as the Kirkland Glen brook, and the South brook, flow, and from time immemorial have flowed, across the farm hereinbefore referred to.
    That the source of Kirkland Glen brook, so called, is two springs, one situate on the farm of James I. Scollard, in said town of Kirkland, Oneida county, N. Y., and one on the farm of Elmer Waters, in said town, county and State, and said brook flows from said springs across the farms of said Scollard, one Charles Ward, and this plaintiff, in a distinct and defined channel near the highway leading from Clinton to Vernon Centre, in said town, county and State. That the source of the South brook, so called, is another and third spring situate on said Scollard’s farm in said town, county and State, the same being located about thirty rods southeasterly from the two springs which are the source of Kirkland Glen brook, and is in no way connected with the same, being separated from the first two named springs by an elevation of land, and that the two streams and their sources are entirely separate and distinct streams of water, having their source in different locations and in different springs, and have been so separate and so defined from time immemorial to the present time.
    That on or about the 26tli day of July, 1894, the defendant, Hamilton College, its trustees, officer and agent, fraudulently procured and induced this plaintiff to execute and deliver an agreement as follows:
    “This conveyance, made July 26th, 1894, from J. R. Petrie to the trustees of Hamilton College, witnesseth: Said J. R. Petrie
    grants and conveys to the said college corporation the right, privilege and easement to take from and divert the water of Kirkland Glen Brook, which runs over my land in the town of Kirkland, Oneida, N. Y., sufficiently to supply the Hamilton College water works, about to be constructed; the consideration of this grant is one dollar.
    “ In witness whereof, I have hereunto set my hand and seal this 26th day of July, 1894.
    “Witness present, J: R. PETRIE [l. s.]
    “ C. H. Smyth. ”
    That the defendant, its officers, trustees and agents, openly state and aver that the defendant, the trustees of said Hamilton College, is about to, and will divert and use all the waters of both the said Kirkland Glen brook and the South brook for its proposed water works.
    
      Henry F. Coupe, for the appellant.
    
      C. D. & Seth C. Adams, for the respondent.
   Hardin, P. J.:

Plaintiff was the owner of a farm of fifty-six acres described in the complaint.

The .referee finds that “ Two small brooks have for some years flowed and do now flow across said farm. The source of each of these brooks is a spring upon the land of one Scollard, some distance above the land of the plaintiff. That said springs are over 500 feet apart and have no connection, and the brooks from them flow down and across the land of the plaintiff over 500 feet apart, and continue to flow separate and apart for about three-quarters of a mile from their sources, where they join below the land of the plaintiff and flow in one stream about two miles to Orislcany creek. Until the making of the writing hereinafter mentioned, such stream liad no name and was designated in such writing as the Kirkland Glen brook. Neither of the brooks flowing across the plaintiff’s land had any known name.”

From the quotation just made it is very clear that the referee was of the opinion, as the evidence warranted him in finding, that there were “ two brooks ” flowing across the plaintiff's land.

In the instrument of July 26, 1894, the language is of a grant of “ the right, privilege and easement to take from and divert the water of Kirkland Glen brook, which runs over my (his) land in the town of Kirkland, Oneida, N. Y., sufficient to supply the Hamilton College water works about to be constructed.” Scanning the language just quoted it is apparent that the paper described only one brook.”

In Groat v. Moak (26 Hun, 381; S. C. affd., 94 N. Y. 115) it was said: We must take into consideration the situation of the parties, the state of the country and of the thing granted at the time of the grant, to ascertain the intention of the parties. * * * The intent, of course, when ascertained, will control in this construction.” In the course of the opinion delivered in affirmance it was said : It is very clear that the grantor in that deed, for the small consideration then paid by the grantees, did not mean to cripple the large and valuable factory by depriving it of any water power it might need to propel its machinery.”

Looking at the surrounding circumstances of the plaintiff at the time he executed the instrument of the 26th of July, 1894, as well as looking at its exact language, it seems unreasonable to put a construction upon the instrument executed by him that shall carry away from him the waters of the south spring. A construction that allows the defendant to take, in virtue of the instrument, the waters of Glen brook, or the north spring feeding the waters of Glen brook, seems to give significance to all the language used by the grantor in the instrument. The expression “ water of Kirkland Glen brook” is descriptive of one brook only; and it is a familiar rule that a conveyance should be so construed as to give force and effect to all the language used; and the other rule is equally clear “ that nothing will pass by a deed except what is described in it, whatever the intention of the parties may have been.” (Thayer v. Finton, 108 N. Y. 397.)

In Coleman v. Manhattan Beach Improvement Co. (94 N. Y. 232) it was said, viz.: “Nothing passes by a deed except what is described in it, whatever the intention of the parties may have been.”

Upon a careful inspection of the instrument, and of all the evidence before the referee, it seems that he would have been warranted in reaching the conclusion that the waters of the south spring were not granted to the defendant by the instrument which the plaintiff executed. The language used by the learned referee seems to have been somewhat restrictive when he says: “ Upon the evidence given upon the trial, I find and decide that the plaintiff has failed to make out and maintain his alleged grounds and causes of action, or either of them, and that his complaint should be dismissed.” He does not find specifically, as a matter of law, just what was covered by the instrument executed by the plaintiff. Perhaps, however, that is necessarily inferred from his deciding to dismiss the complaint. However that may be, I am inclined, for the reasons intimated above, to favor a reversal and a new trial.

All concurred.

Judgment reversed and a new trial ordered, with costs to abide the event.  