
    14906.
    Colley et al. v. Atlanta & West Point Railroad Co.
   Stephens, J.

1. Where a deed is recorded, it has presumably been delivered. In the absence of anything to the contrary, title under a delivered deed presumably passed on the date of the execution of the deed, although the land conveyed thereby is still in the possession of the grantor. Watkins v. Nugen, 118 Ga. 372 (45 S. E. 262); Beard v. White, 120 Ga. 1018 (48 S. E. 400); McBrayer v. Walker, 122 Ga. 245 (50 S. E. 95); Shelton v. Edenfield, 148 Ga. 128 (96 S. E. 3); 8 R. C. L. 1014, and cases there cited.

2. In this case the grantee of the land, who acquired title on the date of the execution of the deed, necessarily acquired the land free and not incumbered with any easement therein which the grantor may have sought afterwards to convey to a third person before the grantor relinquished possession, such as the exclusive right to take water from a certain spring on the land at a stipulated monthly rental. And since the grantee acquired the land unincumbered by the purported easement to take water from the spring, the grantee necessarily acquired no right to collect out of the grantee of the water rights the amount contracted to be paid by the grantee of the water rights as monthly rental for the water.

3. Where the grantee of the title to the land, after acquiring possession, brought suit against the grantee of the water rights, who was continuing to take water from the land, to recover in one count upon the defendant’s contract to pay to the original owner a certain sum monthly for the exclusive right to take water from the land, and where, upon the application of the above rulings, the evidence failed to establish any right in the plaintiff under the contract sued on, a verdict for the defendant, in so far as this count in the petition was concerned, was properly directed.

4. A grant is to be construed most strongly against the grantor. Where a clause in a deed which conveys certain lands to the grantee provides that “the said [grantee] shall have the privilege to lay down fixtures for conveying water from a spring or branch on the east side of said line to the depot grounds, and also of entering the land for repairing the same,” the grant will be construed as giving to the grantee therein the right to take the water in perpetuity and without any additional pay therefor from the grantor’s adjoining land which this clause in the deed incumbers with an easement of the water rights.

5. Where the plaintiff sought in the same action, but in another count, to recover in quantum valebat against the same defendant the alleged value of the water which the defendant had continued to take from the plaintiff’s land, and where it appears from the evidence that the defendant was the successor in title to the grantee of the deed referred to in paragraph 4 above, and that the plaintiff was the successor in title to the grantor therein, the defendant was entitled to the water taken from the plaintiff’s land, and the plaintiff had no right to recover the value thereof. A verdict for the defendant, therefore, in so far as this count was concerned, was properly directed.

Decided September 25, 1924.

Complaint; from Troup superior court — Judge Roop. February 1, 1933.

M. U. Mooly, for plaintiffs.

Dorsey, Brewster, Howell & Heyman, A. II. Thompson, for defendant.

6. The verdict for the defendant was properly directed as to both counts of tlie petition.

Judgment affirmed.

Jenkins, 1’. J., and Bell, J., concur.  