
    Ebenezer Mudge et al., Resp’ts, v. Burdett Salisbury et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Deed—Construction of—Grant of use of water power.
    The plaintiff Ebenezer Mudge in 1886, became the owner in fee of about one acre of land upon which a grist mill stood, “together with a grist mill privilege, being the first on the stream, for two run of stone, with the necessary apparatus for the same.” The deed under which the defendants held the title to their premises contained the provision as to the use of the water for their factory that “ the water was not to be used for said factory to the damage of the grist mill with two run of stone, but to have the next privilege after said grist mill.” Held, that the grist mill privilege of the first use of the water for two run of stone was made appurtenant to the land conveyed and attached as incident to it' that the grantee of the premises could take the water from the race-way for the particular mill then standing, or for any other he might erect on the land conveyed on this stream; that the conveyance of the land with the grant of a grist mill privilege did not limit the enjoyment of that privilege to any particular spot on the stream.
    2. Same—Effect of limitation in.
    The reference to the machinery was not to limit or define the place where or the purpose for which the water could not be used, but to measure and limit its quantity. So long as the grantee did not take more water than was sufficient to operate two run of stone, they were not restricted as to the mode or manner of its use, and were within their rights.
    3. Same—Construction of limitation.
    The grant was of the prior right to take that quantity of water which would afford sufficient power to propel a particular kind of machinery, and there was no restriction of the use of the water to the machinery specified. What was intended to be determined by the use of the term “grist mill privileges for two run of stone with the apparatus” was the quantity of power, without reference to its use.. The quantity of power granted could be defined by what would be sufficient to operate the well known machinery mentioned.
    4. Agreement of sale of land recordable—Admissible in evidence.
    An agreement of sale of land, etc., while not effectual to convey what the vendor does not have title to or is not in possession of, if recorded, is-a part of the record evidence of title, and is properly admissible in evidence as such, and not as any proof of what passed by the deed made in pursuance thereof.
    5. Court of equity—Jurisdiction to avoid multiplicity of actions.
    The avoidance of a multiplicity of actions, and the inadequacy of the legal remedies to prevent the defendants from taking away the water, to-the detriment of the plaintiff’s prior right thereto, and the securing to the plaintiffs, the continuous enjoyment by them, of those superioi rights, are sufficient grounds for the interposition of a Court of equity.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment of the Cortland county special term, in favor of the plaintiff.
    
      Oliver Porter, for appl’ts; J. E. Eggleston, for resp’ts.
    
      
       Affirming 35 Hun, 665, mem.
      
    
   Gray, J.

It was found by the trial judge that the plaintiff, Ebenezer Mudge, in 1866, became the owner in fee oj about one acre of land, on which the grist mill stands, “together with the grist mill privilege, being the first on the stream, for two run of stone, with the necessary apparatus for the same.” This finding was supported by the record evidence of the plaintiff’s title, and the deed, under which defendants hold the title to their premises, contained the provision as to the use of the water for their factory, that “ the water was not to be used for said factory to the damage of the grist mill, with two run of stone, but to have the next privilege after said grist mill.”

In fact, the answer of the defendant’s concedes that the plaintiffs were entitled to sufficient water to operate “two run of stone” for their grist mill. But they say in defense of the plaintiff’s cause of action, in substance, that these reservations of the privilege to take water from the race-way, had reference and were limited to the . grist mill as it stood and was in 1835, and that by the reconstruction by the plaintiffs of their grist mill, at a point some sixty or more feet below the site of the old mill, the conditions of the grant of water power were affected, so as to defeat' their present assertion of a claim for equitable relief.

I think they misapprehend the terms of the grant of water power. The grist mill privilege of the first use of the water for “ two run of stone ” was made appurtenant to the land conveyed and attached as an incident to it. The grantee of the premises could take the water from the raceway for the particular mill then standing, or for any other he might erect on the land conveyed, on this stream. The conveyance of land, with the grant of a grist mill privilege, does not limit the enjoyment of that privilege to any particular spot on the stream.

The only limitation in this grant is, that it may be availed of as a prior privilege to the extent of “two run of stone, and the necessary apparatus for the same.” The reference to the machinery was not to limit or define the place where, or the purpose for which the water could be used; but to measure and limit its quantity. So long as the grantee did not take more water than was sufficient to operate “two run of stone,” they were not restricted in the mode or manner of its use, and were within their rights. The defendants further insist, however, that in the new mill are more wheels and other machinery, and that the presumption exists that, for that reason and from the lengthening of the flume, more water was required and the burden was on plaintiffs to show that no more water was used than was sufficient for “two run of stone.” They also say that the plaintiff’s mill is no longer a mere custom or neighborhood mill, as formerly it was.

This contention is disposed of by the decree, which adjudged the plaintiff’s entitled only “to sufficient water at all times for two run of stone, with the apparatus for the same, for their mill.” They are thus limited to the precise terms of their grant.

Within the principles laid down in the opinion of the court in Cromwell v. Selden (3 N. Y., 253), and which have been repeatedly recognized by this court since the decision in that case, the grant here was of a prior right to take that quantity of water which would afford sufficient power to propel a particular kind of machinery and there was no restriction of the use of the water to the machinery specified. What was intended to be determined by the use of the terms“grist mill privilege for two run of stone, with necessary apparatus” was the quanity of power, without reference to its use. The quantity of power granted could be defined by what would be sufficient to operate the well known machinery mentioned. This construction is demanded and is justified on grounds of public policy and as being more beneficial to the plaintiffs, without being any more injurious to the defendants. Olmstead v. Loomis, 9 N. Y., 423; Wakely v. Davidson 26 id., 387; Groat v. Moak, 94 id., 115.

None of the exceptions mentioned by the appellants would warrant us in ordering a new trial of this action. The admission in evidence of the whole of the contract between Curtis and Brockway, if necessary at all was proper. While not effectual to convey what the vendor does not have title to, or is not in possession of, an agreement of sale of land etc., if recorded, is a part of the record evidence of title and is properly admissible as such and not as any proof of what passed by the deed made in pursuance thereof. It could not possibly affect or prejudice the defendants in. any conceivable aspect of the case. And the same observation may be made with respect to the admission in evidence of the sheriff’s certificate of sale of lands in 1823. For over twenty years plaintiff’s and their grantors have enjoyed an uninterrupted use of this privilege to the first use of this water and the trial judge has found, on the proofs, that it was for more than twenty-five years recognized and admitted and acquiesced in by the defendants. This would amount to a practical construction by the parties-themselves of the extent of the grant to and rights of the plaintiffs.

Resort to equity by the plaintiffs was proper in'this case. The jurisdiction of courts of equity, and their, power to grant relief, cannot be doubted. The avoidance of a multiplicity of actions and the inadequacy of legal remedies to prevent the defendants from taking away the water, to the detriment of plaintiffs’ prior rights thereto, and to secure to plaintiffs the continuous enjoyment by them of those superior rights, are deemed sufficient grounds for the interposition of a court of equity. Olmstead v. Loomis, 9 N.Y., 423; Corning v. Troy Iron Factory, 40 id., 119.

I think the decree was right and that the judgment of the general term, affirming the same, should be affirmed, with costs.

All concur.  