
    Lee Sprague versus Eli Snow et al.
    
    A grantor, after describing a tract of land conveyed by his deed, but without having mentioned a stream included within the bounds, proceeds thus:—And it is to be understood, and it is the intention of this deed, to convey to the grantee as much of the privilege of the water, as shall be sufficient for the use of a fulling-mill, whenever there is a sufficiency therefor.” It was held, that this clause was not repugnant to the preceding grant, but was a good reservation of the surplus water.
    This was an action of debt upon a bond; the condition of which, after reciting that the defendants had conveyed to the plaintiff seventeen twenty-third parts of a blacksmith’s shop, situate on the west bank of Flat brook, with the privilege of using that same proportion of so much of the water as might not be necessary for the supply of a fulling-mill, bound the defendants to save the plaintiff from all damage, harm or hindrance, from using such proportion of the water, against all persons malting claim or demanding damage therefor. The defendants pleaded non damnificatus. The plaintiff replied that the defendants permitted one Simeon Cummings to divert the water, over and above what was necessary for the fulling-mill, from the blacksmith’s shop, Cummings having lawful title to such surplus water, before and at the time of malting the bond, whereby the plaintiff was damnified. The defendants rejoined, that Cummings had not any lawful title to such surplus water ; and thereupon issue was joined.
    The plaintiff, to prove the issue on his part, produced a deed from Aaron Cunningham to Cummings, conveying a tract of land including within its bounds the stream in controversy.
    The defendants then produced a deed from Davidson Barr to Cunningham, in the premises of which, after a description of the same land, but making no mention of the stream, was the following clause :— “ And it is to be understood, and it is the intention of this deed, to convey to the said A. C., as much of the privilege of the water as shall be sufficient for the use of a fulling-mill, or a bark-mill, when ever there is a sufficiency therefor.” It was admitted that the fulling-mill of Cummings is the one alluded to in die bond.
    
      
      Sept. 25th.
    
    
      Sept. 30th.
    
    The plaintiff also proved that Cummings claimed the surplus water in 1818, and that a tenant paid him eleven dollars for the use of it eleven months.
    This being all the evidence in the case, of Cummings’s title, Wilde J. ordered a nonsuit, subject &c.
    
      Bates and Doolittle, for the plaintiff.
    The general words in the deed from Barr to Cunningham are sufficient to pass the land with all the buildings, water, &c., upon it, and an exception of the stream would be repugnant and void. But the grantor has not used the ordinary words of exception or reservation, nor words equivalent, and in fact he did not intend to make any reservation or exception. The clause which raises this question was designed merely to state the object of the grant, and the latter part of it was added from greater caution, to protect the grantor in case at any time there should not be a sufficiency of water for the fulling-mill. Words of reservation are to be construed strictly against the grantor. Com. Dig. Fait, E 5 ; ibid. Parols, A 23 Adams v. Frothingham, 3 Mass. R. 361; Worthington v. Hylyer, 4 Mass. R. 205; Bott v. Burnell, 11 Mass. R. 167; Alden v. Murdock, 13 Mass. R. 258; Cutler v. Tufts, 3 Pick, 272.
    
      E. H. Mills and Ashmun, for the defendants.
   Parker C. J.

delivered the opinion of the Court. The condition of the bond on which the action is brought, is in the nature of a covenant to warrant the title of the plaintiff in the portion of the stream and privilege which the defend ants had conveyed to him. The breach assigned is, that Cummings claimed and actually had right and title to the privilege. This is traversed, and a nonsuit has been ordered on the ground that Cummings had not the title alleged.

The evidence offered by the plaintiff, of title in Cummings, was a deed from A. Cunningham to Cummings, of a tract of land, particularly described, which is said and admitted to include within its bounds the stream which is in controversy.

The stream, however, is not granted specifically, nor is there any general grant of the privileges and appurtenances of the land conveyed. But if Cunningham had a right to the stream, it may be considered, for the purposes of this action, that the use and privilege of it passed with the land. It was necessary therefore for the plaintiff, in order to maintain the issue, to show that .Cunningham had a title to the stream.

• This was done by the deed to Cunningham from D. Barr ; which conveys the same land, including within its bounds the stream, and in the habendum has the usual clause of conveyance of privileges and appurtenances. But in the body of the deed, after the description of the land, without mentioning the privileges or the stream, is the following clause: — i£ And it is to be understood, and it is the intention of this deed, to convey to the said Cunningham as much of the privilege of the water as shall be sufficient for the use of a fulling-mill, or a bark mill, whenever there is a sufficiency therefor.” The manifest intention of this clause is, to restrict the operation of the deed in regard to the stream, to that portion of the water necessary for a fulling-mill; and effect ought to be given to this intention, if it can be done without violation of the rules of law. 11It is urged, that the whole of the stream passed by the conveyance of the land, and that this restraining clause, being subsequent, is void for repugnancy, whether it be considered in the light of an exception or reservation or as an explanation of the preceding words of conveyance. The principle on which the objection rests is correctly stated, but its application is mistaken. If there is an explicit and unambiguous grant of a thing, any exception or reservation which is manifestly contradictory is to be rejected; as if a man convey twenty acres, excepting one acre. But if a farm or tract of land is conveyed by general terms, an exception of any number of acres, or any particular lot, is not repugnant, but will be valid. The case of Cutler v. 'Tufts, 3 Pick. 272, exemplifies the principle. There the conveyance was construed to be of a moiety, and in a subsequent clause the grantor said, that he meant to convey a fourth part. This was obviously contradictory, and so was rejected.

In the case before us, the privilege had not been granted m terms, before the explanation, though it probably, without the restraining clause, would have passed by construction; but there being no express grant, the restrictive clause cannot be considered contradictory or repugnant. It does not appear in the case whether Barr, when he conveyed to Cunningham, was the owner of more of the stream than was ne cessary for the use of the fulling-mill. If he was, he reserved all the surplus to himself; if he was not, he would not be bound upon his covenant for more than he intended to convey.

With respect to the possession of Cummings, and his lease to a tenant, this only shows a possession which, for aught that appears, might be unlawful, and the defendants are not bound to indemnify against unlawful claims or possessions.

Nonsuit made absolute. 
      
       See Ingell v. Nooney, 2 Pick. (2d ed.) 366, in notes; Wader v. Howard, 11 Pick. 296; State v Trash, 6 Vermont R. 355, 364.
     
      
       See Platt on Covenants, 313 et seq.; Marston v. Hobbs, 2 Mass. R. (Rand’s ed.) 438, n. (a); 2 Wms’s Saund. 181 a, note; 2 Stark. Ev. (5th Amer. ed.) 249.
     