
    Oldham & Mosely vs. Kennedy et als.
    
    1. If properly be deteriorated or destroyed in the hands of the vendee, or equitable owner, the loss faljs on such vendee or equitable owner.
    2. A sold to B a water mill, and covenanted that the pond which supplied said mill with water, should be and forever remain as it then was : Held, that as vendor and others owned land over 'which the mill pond spread, it should be construed that the vendor intended to covenant against his own interference and the interference of others with the dam as built, and pond, and not against acts of God or of the government.
    This bill was filed by Oldham and Mosely against W. S. Kennedy and others, for the purpose of rescinding a contract for the conveyance of ten acres of land to Oldham and Mosely, by the defendants Kennedy and others, in the chancery court at Knoxville. On the 13th day of November, 1820, Rufus Morgan sold and conveyed to James Kennedy sr. in consideration of the sum of $10,000, a tract of land lying in the county of Knox, on White’s creek, containing ten acres, by specified boundaries, “so as to include Rufus Morgan’s new mill and dam, together with all and singular the woods, ways, waters, watercourses, rights, privileges, profits, immunities, hereditaments and appurtenances to the said, tract of land belonging or appertaining.” This deed further covenants that “it is understood as an appurtenance thereto, that the mill pond belonging to said new mill hereby conveyed, shall be and continue a mill pond, appropriated to the use ,of said mill, and the site whereon it stands, as it now is forever, with the further privilege to said Kennedy, his heirs and assigns forever, of working and digging on the banks of said pond to the distance of one rood, from the water side at ordinary height, for the purpose of preserving and repairing said pond against injury, it being at the same time understood that the dam of said pond is never to be raised above its present height; and it is further understood as a right appertaining to said land that the water of the pond below said new mill shall never be raised so as to stand higher at ordinary water than the lowest point of the large water wheel of said new .mill;” and this is in conformity with a provision in the 'deed of conveyance from Rufus Morgan for the land on said creek below.” And it is further understood between the parties, that a road for public use leading from the main road across the brige, over the clam of said new mill, shall be kept open, but said Rufus Morgan expressly reserves to himself, his heirs, and assigns forever, the privilege of keeping in repair the pipe which conveys the water from said swamp; and secondly, of raising dirt dams on the sides of’said pond, as places of landing and unloading . wood and timber that may be brought in boats down said pond, under this restriction however, that said dams shall not be injured thereby; to have and to hold said tract of land with the appurtenances thereto belonging, and with the easements and incumbrances aforesaid, unto the said James Kennedy sr., his heirs and assigns forever, and against the lawful title, claim or demand of all persons whatever, the said Morgan for himself, his heirs, administrators and assigns, doth covenant and agree with said Kennedy, his heirs, administrators and'assigns'forever, to warrant and defend, and particularly in as much as the pond of said new mill overflows a part of the land of Joseph Bell, the said Morgan for himself, his heirs, administrators and assigns, doth hereby covenant and agree with the said Kennedy, his heirs, administrators and assigns against all and any damage or injury that they may sustain on account of said pond overflowing the land of said Bell.”
    James Kennedy sr. took possession of the tract, and kept possession till his death: after his death it was conveyed by his executor to James Kennedy jr., and W. S. Kennedy. On the 1st day of April,'1837, James Kennedy and W. S. Kennedy sold it to Oldham and Mosely, the complainants in this case, for the sum of $12,000, secured to the said W. S. & J. Kennedy, by nine obligations, all bearing interest from the date. The defendants W. S. & J. Kennedy executed and delivered to Oldham and Mosely, a bond for title when the purchase money should be paid. This bond obligated the vendors “to make to said Old-ham and Mosely, their heirs and assigns forever, an absolute deed of conveyance in fee simple and with general warranty, of the said tract of land, with all the rights, privileges, heredita-ments and appurtenances, and all the liabilities and incum-brances vested in or imposed upon us,” the former owners of said tract, as by the deed of R. Morgan to James Kennedy sr. ' ,
    On the 22d February, 1838, Oldham and Mosely were indicted for a nuisance in the circuit court of Knox county, for the continuance of said mill dam. and mill pond. At the June term, 183S, this indictment was tried and the defendants acquitted. At the October term, ensuing, they were again indicted, and at a special term held in December following, they were found guilty of continuing a nuisance, and judgment entered that said nuisance be abated and that said Mosely and Oldham abate it by the next term of the court, and that they pay the cost, &c. &c. The character of the dam and pond was not changed whilst in the possession of complainants, but continued as it existed in the possession of Morgan and Kennedy.The sole inducement of the 'purchase was the water privilege, and the land without the water privilege was in a great measure valueless. '
    In August 1839, James Kennedy died, leaving a widow, Jane Kennedy and three children, James, William and Elizabeth. The obligation first due fell due on 1st of April, 1839, and suit was instituted thereupon in the circuit court of Knox county, and judgment rendered thereupon in favor of the surviving partner against Oldham and Mosely, for the sum of $2424, on the 13th October, 1842. On the 26th day of October, 1840, the complainants filed this bill setting forth 'the sole object they had in view in the purchase, was the water privilege; that they had been deprived of the use of it by the judgment of the court, condemning the erection as a nuisance, that it was no more a nuisance at the time of the judgment abating it, than it was at the time of the purchase, that the defendants W. S. Kennedy and James Kennedy deceased, had waranted to them the perpetual enjoyment of the water privilege as it existed at the time of the sale, that the land was valueless without the water privilege, and that they had been deprived of that, and praying that the contract be rescinded upon such terms as might be regarded as just and equitable.
    W. S. Kennedy and the heirs of James Kennedy, deceased, and Jane Kennedy were made" parties defendant, and filed their answer to the bill. A replication was filed thereto, and proof taken, corresponding with and sustaining the facts above set forth.
    The case was heard before chancellor Ridley, at the October term, 1841, and he being of the opinion that the defendants were “not able to make complainants a title to the land and appurtenances thereto, designated in a title bond executed on the 1st day of April, 1837, by W. S. & J. Kennedy to complainants, according to the true intent and meaning thereof,” and being of the opinion that the water power attached to said premises was the principal inducement to the purchase, and that the said water power had been wholly lost to the said complainants contrary to the express warranty of W. S. & J. Kennedy, decreed, that the contract be rescinded, that the defendants be perpetually enjoined from collecting the judgment recovered by the surviving partner, and that complainants account to the defendants for the use and occupation of the premises &c.
    The defendants appealed.
    
      Crozier, for the complainants.
    
      Sioan, for the defendants.
   Re ese, J.

delivered the opinion of-the court.

In April 1837, James Kennedy and William S. Kennedy, for the consideration of twelve thousand dollars secured by the bonds of Oldham and Mosely to be thereafter paid to them, sold to Oldham and Mosely, ten acres of land • including the mill commonly called the upper mill on White’s creek near Knoxville, with the dam- and appurtenances; gave them a bond to convey to them a title, by deed of general warranty, with certain covenants therein referred to, on the payment to them, of the entire consideration secured as aforesaid; and they put the said O'ldham and Mosely forthwith into the possession and enjoyment of the premises. In February 1838, the complainants were presented by the grand jury of Knox county, for a public nuisance in keepihg up their dam and mill pond, to the injury of the public health, and of this offence they were in June afterwards acquitted.- But in December following they were again indicted for the same offence, of which they were convicted by the verdict of a jury, and judgment of abatement of the said nuisance was thereon rendered., and the same was abated by opening the dam and by drawing off the water of the pond and the same has since remained in that condition. The bond first due for the consideration has been sued on at law, and this bill is filed to enjoin the collection oT the same, and to have the others surrendered and cancelled and for a re-cission of the contract. The relief prayed for in the bill is not predicated upon any allegation of frauds nor is there any proof of such in the case; nor is it insisted on in argument that the complainants are entitled to the relief on any principle of general equity, as arising out of the relation of vendor and vendee, under the circumstances which have occurred, for it is conceded that if property be deteriorated or destroyed in the hands of the vendee or equitable owner, the loss falls upon him; and this doctrine is now well settled. But it is contended that the parties in this contract stipulated against the removal of the mill pond by means such as actually took place, and the only question in this case is whether this is so or not. The title bond or contract stipulates that when the consideration shall be fully paid, the vendors will make to the complainants “an absolute deed of conveyance in fee and with general warranty,” for the premises in question “with all the rights, privileges, hereditaments and appurtenances, and with all the liabilities or incumbrances vested in or imposed” on the vendors set forth in the deed from Rufus Morgan to James Kennedy, and taking it for granted that this stipulation will embrace and incorporate in the contract between the complainants and defendants, all the covenants general or special contained in the deed from Rufus Morgan to the elder Kennedy, the question arises whether that deed does contain any covenant entitling the complainants to the relief sought. That deed was made in November 1820. After describing the boundaries of the ten acres by course, distance and other calls, it adds “so as to include Rufus Morgan’s new mill and dam, together with all and singular, the woods, ways, waters, water courses, rights, privileges, profits, commodities, hereditaments and appurtenances to the said tract of land belonging or appertaining; “but especially it is understood as an appurtenance thereto, that the mill pond belonging to the said new mill hereby conveyed shall be and continue a mill pond appropriated to the use of said mill and the site whereon it stands as it now is forever, with the further privilege to the said Kennedy sr. of working and digging on the banks of the said pond to the distance of one rood from the water edge, for the purpose of repairing and preserving said pond from injury; it being at the same time understood that the dam of said pond is never to be raised above its present height.”

There are other covenants in said deed, and among others one to indemnify Kennedy against one Bell whose lands were overflowed by said pond. The question is in what is granted above, did Morgan intend to covenant against the vis major, the act of God or of the government? Does this arise expressly or by necessary implication? If a vendor of a mill ■ dam and pond intended to give, and the vendee to exact a covenant so extraordinary as that the dam and pond should never in all future time be abated as a nuisance, would it not be expected to be expressed in direct and unambiguous terms? The truth is that when the whole deed is inspected there is no difficulty in understanding this portion of the covenant.

The closing line of the deed calls to run across the pond: so it is obvious from the deed that the pond is not all, perhaps very little of it, included in the ten acres. Morgan continued riparian owner of both, sides of the creek including the pond, and of the land covered by both the creek and pond up to Bell’s line; a part of it overflowed Bell’s land; under such circumstances Morgan says to Kennedy, “although I have not sold you the shores adjacent to the pond, nor the lands covered by it, and am not myself owner of all the land covered by the pond, yet I covenant that said pond shall be and always continue appropriated to your dam and mill at its present height and you may take the soil within a rood of the shores for repairs, and I will indemnify you against Mr. Bell; but then as connected with these covenants, you must raise your dam no higher than at present, for that would overflow more of my land and more of Mr. Bell’s.”

There was under the circumstances of the case nothing extraordinary in the covenant, it was very natural and very proper, and we think there is no difficulty whatever in understanding and satisfying its meaning without any the least reference to protection against the criminal laws for a nuisance. We must therefore reverse the decree of the chancellor, dissolve the injunction in this case and dismiss the bill, but at the mutual cost of the parties.  