
    Howard vs. Wadsworth & al.
    In the conveyance of a mili-sito, falls, and privileges, &e. “exclusive of the grist “mill now on said falls, with the right of maintaining the same,” this reservation secures to the grantor no title to the soil, hut only a right to the use of the mill then standing, so long as it is kept in repair.
    This was a writ of entry on the seisin of the demandant, brought to recover possession of “ a certain grist mill, with the “privileges and appurtenances thereof, standing on a mill-privilege” in Brownfield.
    
    Both parties claimed under Samuel and Thomas Howard, who, in 1807, conveyed to the tenants “ one undivided half of a certain mill lot lying in Brownfield, beginning ata bridge on ten “milebrook, containing all the falls, with the privilege of flow- “ ing the pond for the benefit of the mills on said falls,” &c. “ together with one undivided half of the dam, saw-mill, and slip, “ with all the privileges and appurtenances thereunto belonging. “But exclusive of the grist mill now on said falls, with the right of “maintaining the same, and also the dwelling house and sheds nowon “the premises” The same grantors afterwards conveyed the residue of their interest in the premises to the demandant ; who, in 1816, conveyed to the tenants the other undivided half of the estate which they purchased by the deed of 1807, by the same description, ajad with the same exceptions.
    
      At the time of the first conveyance there was a saw-mill standing on the premises, within which, and under the same roof, was the grist mill mentioned in the deeds, having a separate water wheel and floom ; which continued in the occupation of Samuel Howard, one of the original grantors, till October 1818 ; when the tenants, took it down, and built a new saw mill on the same site ; Samuel Howard assisting in the taking down, and taking into his own custody the gearing and other materials pertaining to the grist mill.
    The Chief Justice, before whom the cause wgs tried, directed a nonsuit, by consent of the parties, subject to the opinion of the Court upon the question whether this evidence, was sufficient to maintain the action.
    
      Dana, for the demandant,
    contended that by the' reservation in the deeds a fee simple- remained to the demandant, in the grist mill and the land on which it stood. By the deeds it is apparent that something beneficial was intended to be reserved to the grantor; but as the reservation is not limited, nor any lesser estate described, it must be taken tobe a fee simple ; otherwise it would be useless. For if it is restricted to the occupancy of the mill then standing, it would be in the power of the tenants to destroy its identity, and thus terminate the estate, at their pleasure. This construction is fortified by the language of the reservation, which gives the grantor the “ right of maintaining” the grist mill; which must be understood to mean the right of continuing it at his pleasure forever. And this language not being-applied to the other buildings on the land, it is manifest that a different estate was intended.
    
      Greenleaf, for the tenants.
    By the grant of all the falls, the grist mill would have passed, if not specially excepted. The exception is to be taken most strongly against the party introducing it. Shep. Touchst. 75, note 2, 10 Co. 106 b. And it does not include the land. The grant of a mill conveys only the waters, flood-gates, and gearing, necessary to work it; Shep. Touchst. 86, 87 ; and the exception of the mill can include nothing more. Moreover, it was the grist mill then standing, which was reserved. If the tenants took it down while it was useful to the demandant, his remedy should have been sought by action on the case.
   Mft,len C. J.

delivered the opinion of the Court, at the adjournment of the following November term in Cumberland.

By the report it appears that Samuel, and Thomas Howard were in Oct. 1807, owners of the whole of the mill privilege, mills, mill-dams and privileges therein mentioned ; that Oct.'S, 1807, they conveyed to the tenants one undivided half part of the same in fee simple, “but exclusive of the grist mill now on said falls, “ with the right of maintaining the same, and also the dwelliug- “ house and sheds now on the premises —that Nov. 21, 1807, the same grantors conveyed to the demandant in fee “a certain “ mill privilege of the ten mile brook in Brownfield, with the “ mills thereon, &c. except such part of said privilege as we “ have lately sold to Peleg and Charles Wadsworth —and that Oct. 7, 1816, the demandant conveyed to the tenants in fee the other undivided half of the same lot mentioned in the deed of said Samuel and Thomas Howard of October 8, 1807, and with the same exceptions. The claim of the demandant in this action is founded on the exception in the deed last mentioned ; and the question to be decided is, what is the true construction of that clause in the deed. According to a well known rule of law, as an exception operates by way of a restriction upon the general language of a grant, if it is in ambiguous language, it must not be enlarged by construction; but rather be construed strictly. The demandant contends that by the exception, the grist mill therein named, and the land on which it stood, and its appurtenances, remained in the grantors ; and that the fee thereof never passed by the deed to the tenants. The tenants contend that nothing was embraced in or intended by the exception, other than the mill and the right of maintaining it so long as it should stand on the premises ; and the dwelling house and sheds standing thereon. Upon a careful examination of the language of this deed, we are all satisfied that the tenants’ construction is the true one. The exception relates to the mill, house and sheds, then standing on the premises ; the grantors repeat the word “now” twice, in des-eribing what is excepted. Besides, there is a material variance between the language of the grant and of the exception. The grant describes the mill, privilege, &c.; but the exception is silent as to privileges and appurtenances; and refers only to the mill itself. Again, if the land on which the mill stood was intended to be conveyed, why should there have been á grant of a right to maintain the mill on the same ? Has not any man a right to erect or maintain a mill on his own land, without a special authority from his grantor so to do ? A grantor may annex conditions to his grant ; but it is certainly unusual, to say no more, for him to add to the language of his conveyance, permission to the grantee to go on and manage and improve his land by building houses and mills. All this he can do without such permission. The exception must not be extended beyond the plain language of it. Now it appears by the report that the mill described in the deeds was taken down, and had ceased to exist before the commencement of this action ; and of course, so far as the exception related to the grist mill, it has had its effect and ceased to operate. As to the house and sheds, we have no connection with them in this action. If the tenants have done the demandant an injury by taking down the old grist mill, and thus destroying, so far, the benefits of the exception, he may maintain an action for damages ; but on the facts before us, we are all of opinion that the nonsuit was proper and must be confirmed.  