
    Frederick Gilbert, Respondent, v. Robert Helmich, Appellant.
    
      Reservation of the right to build a dam in a deed— effect of the wife’s joining in the deed on other land belonging to her—effect of a covenant to pay a moi'tga,ge covering her land.
    
    In an action brought to restrain the defendant from continuing to flood the lots of the plaintiff, it appeared that the plaintiff, under a deed from Henrietta ¡Suffern, the wife of Charles E. Suffern, derived title to lots lying west of the Mahwah creek, on the east of which creek were lands owned by the defendant, all of which land had been originally owned by Charles E. Suffern, who had conveyed to one Alonzo Wheeler, who had conveyed to Henrietta Suffern, the lands in question west of the creek. Subsequently Charles E. Suffern and Henrietta Suffern conveyed to John Mack the lands on the east, and to the center, of the creek, by a deed conveying the dower and all other rights of Henrietta Suffern in the premises east of the creek, but containing no covenants whatever upon her part.
    This deed contained a reservation in favor of Charles E. Suffern, allowing him to build a dam on the premises and flood the land conveyed within a year, with the proviso that, if he did not then build the dam or notify the grantee of, his intention to complete the building of one within the six months following, the grantee might build a dam for his own use; “having the same privileges and rights of way” as CharlesE. Suffern.
    ■In pursuance of this authority, the defendant built a dam, which flooded the land owned by the plaintiff.
    
      Held, that the plaintiff was entitled to an injunction;
    That the defendant acquired no rights under the deed executed by Charles E. Suffern and Henrietta Suffern to Mack, to flood the lands on the west side of the creek owned by Henrietta Suffern; and subsequently conveyed to the plaintiff;
    That the fact that, by the terms of this deed, Mack agreed to pay off a mortgage which existed upon the whole premises, did not raise any particular equity in his favor as against'Henrietta Suffern; . '
    That as the western plot deeded to AVheeler (and by him to Henrietta Suffern) had been conveyed free and clear of all incumbrances, the remaining land became primarily liable to pay the mortgage debt, and that when Mack, as a part of the consideration of his deed, agreed to pay that debt, Henrietta Suffern gained merely the additional security of Mack’s personal obligation.
    Appeal by the defendant, Robert Helmich, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 27th day of May, 1895, upon the decision of the court rendered after a trial at the Rock-land Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment or order entered, in said clerk’s office on the 16th day of April, 1895, granting an injunction in favor of the plaintiff, and also an order granted at the Rock-land Circuit and Special Term on the defendant’s motion made May 20, 1895, for leave to amend his answer and set up a counterclaim.
    The action was brought to restrain the defendant from continuing to flood, by means of a dam, lands owned by the plaintiff.
    
      Edward Wells, for the appellant.
    
      William McCauley, Jr., for the respondent.
   Cullen, J.:

In 1874 one Charles E. Suffern owned a tract of land of some fifty acres in Rockland county, bounded on the north by the if yack turnpike and on the south by land of Edward Suffern. This tract t was bisected substantially into moieties by the Mahwah creek, which runs through - it from north to south. On December 19, 1874, Charles E. Suffern conveyed to Alonzo Wheeler the north part of the moiety, lying to the west of the' Mahwah creek, bounding the tract by the middle of the creek — the tract containing about fifteen acres. On December 19, 1874, Wheeler conveyed the same premises to Henrietta, wife of Charles E. Suffern. On February 2, 1875, Charles E. Suffern and Henrietta, his wife, conveyed to John Mack by deed, with full covenant, the eastern moiety of the original tract, the westerly boundary of such moiety being the center of the Mahwah creek. At the end of the description there is found in the deed the following:

And the said Charles E. Suffern, for himself and his heirs and assigns, reserves the right for one year from the time of sale of said premises, to build a dam on said premises to flood the land thus conveyed, from the middle of said Mahwah creek to a height that a dam not more than 15 feet may, or will, raise the water; and if the first party does not build a dam within one year, or notify the party of the second part that he will complete the building of one within the six months following, then it is ■ agreed that - the party of the second part shall have the right to build a dam across the said creek for his own use, having the same privileges and rights of way as the said party of the first part.”- ■ •:

Then follows the usual habendum clause. The covenants of title are the individual covenants of Charles E. Suffern. The plaintiff •established a perfect chain of title from Henrietta Suffern to cer-. tain lots in the tract conveyed to Wheeler and by Wheeler to her, as above stated. The defendant has acquired all the tract conveyed to Hack by' Charles Suffern and wife and the rights appurtenant thereto. The defendant sought to dam the creek. The result was to overflow the plaintiff’s land. This action was brought to restrain the defendant from continuing to flood the plaintiff’s lots.

A large part of the discussion of this casé by the counsel we deem irrelevant. The deed to Wheeler and that from Wheeler to Henrietta Suffern were recorded before the time of the conveyance to Hack, and the deed to Hack was recorded before Henrietta Suffern conveyed or incumbered her title. There can, therefore, be no question of notice or want ■ of notice in this case. The deed to Wheeler contained no reservation of any right or easement by the grantor; but it appears, and it is this fact that presents the only-point in the. case, that a dam fifteen feet high, or even of less1 height, will flood not only part.of the premises conveyed to Hack, and also part of the southwest corner of the tract then still retained by. the grantor, Charles E. Suffern, but also part of the land conveyed to Wheeler and then- owmed by Henrietta Suffern. The question and the only question we have to- decide is whether, by joining with her husband in the deed to Hack, Henrietta conveyed to the latter the right to flood her lands to the extent necessary for-a dam fifteen feet, high.

Unquestionably the primary object of the wife joining.in the deed was to release her right of dower. But following the usual form of conveyance the language of the grant goes further: “ And, also, all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoevér, as well in law as in equity, of the said parties of the first part, of, in and to the same, and every part and parcel thereof, with the appurtenances.” I asstime that this broad language, would pass any title or estate the wife might have in the premises conveyed as well as her right of dower. It would also grant any interest or estate which she might have in the appurtenances, and “ appurtenances ” would include any easement attached to the conveyed premises, such as the right t'o Bow other lands.. But in the deed under examination it is to be observed that, in the first instance, there is not given the grantee any easement, but there is a reservation by one of the grantor's (the husband) of an easement in the premises conveyed, and only in case that grantor should fail to build the dam, or notify the grantee within one year of his intention to build it, is it provided that the grantee should have the right to build a dam across the creek, “ having the same privileges and rights of way as the said party of the first part.” ' The clause begins with a reservation not by both grantors, but only by the husband. There is no grant by the wife to the husband. Plainly if the husband had' first exercised the right to build the dam, he could, under this deed, have acquired no right or easement to flood the lands of the wife. On his default to exercise the right of building the dam, what was to pass to the grantee were only the same privileges and rights of way as the husband had, which would not include any easement in the property of the wife. The wife not being a party to the covenants of title, there is no estoppel against her. We think that the fair interpretation- of this agreement, interjected into the deed after the description, is that it was an agreement solely between the husband and the grantee, relating to their lands, and that it would be extending the deed far beyond its proper limits and natural purport to hold that the wife conveyed by it any interest or easement in her own lands.

Mor does the fact that by the deed to Hack the latter was to pay off the mortgage on the whole premises raise any particular equity in that grantee as against the wife. The first plot had been' conveyed to Wheeler, and by Wheeler to Henrietta Suffern, free and clear. This rendered the remaining land primarily liable in equity for the payment of the "mortgage debt. By the conveyance to Hack, Hack agreed to pay the debt as the consideration of the conveyance. As equity would have made the land conveyed to him and the remaining land of the husband first liable for the debt, without any agreement on his part, all Henrietta Suffern gained by the conveyance Was the additional security of Hack’s personal obligation. The Special Term, therefore, rightly construed this conveyance.

The judgment appealed from should be affirmed,, with costs. ,

All concurred.

Judgment affirmed, with costs.  