
    Whitney et al. v. Richardson et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    April, 1891.)
    Easements—Construction of Grant.
    The owner of land executed an indenture, which was acknowledged and recorded, to the owner of a cheese factory, which provided that he “has letten, and by these presents does let, grant, and demise, ” to the latter, the right to use sufficient water from a spring on the land to run the factory, “to have the use of said water so long as the same shall be used for the purpose of running a cheese factory. ” Meld, that under. 1 Rev. St. N. Y. 748, § 1, providing that every grant shall pass all the estate or interest oí the grantor, unless an intent to pass a less estate appears, the easement did not terminate with the death of the parties, but continued so long as the cheese factory was operated.
    Appeal from circuit court, Erie county.
    Charles W. Whitney and others sued Henry W. Eichardson and others to recover rent. The defendants appeal from a judgment entered upon a verdict and an order denying a motion for a new trial.
    Argued before Dwight, P. J., and Macomber and Corbett, JJ.
    
      
      Charles W. SieJcmon, for appellants. Charles F. Whitcher, for respondents.
   Corlett, J.

At the time stated in the instrument, a paper was executed of which the following is a copy:

“This indenture, made this second day of December, 1873, between Abner Orr, of the town of Holland and county of Erie and state of Hew York, of the first part, and William A. Johnson of the town of Collins, county and state aforesaid, of the second part, witnesseth: That for and in consideration of the sum of one dollar, paid by the party of the second part to the party of the first part, he has letten, and by these presents does let, grant, and demise, unto the said-party of the second part, the right to take and use sufficient water to run his cheese factory in Holland, from a spring on the premises of the party of the first part situate about thirty rods east of said cheese factory, and being the same spring by which the water is now conveyed to said cheese factory; to have the use of said water so long as the same shall be used for the purpose of running a cheese factory, provided the said party of the second part shall, in digging for the purpose of laying and repairing pipes for the purpose of conveying water from said spring to said cheese factory, fill up and keep the surface level: In witness whereof the party of the first part has hereunto set his hand and seal the year and day first- above mentioned.

“Abner Orr. [l. s.]

“On the fifth day of December, 1873, came before me, Abner Orr, to me known, and acknowledged that he executed the within instrument for the purpose therein mentioned.

“John 0. Riley, Hotary Public for Erie County.”

The above instrument was acknowledged and recorded in Erie county clerk’s office on the 16th day of December, 1873. Johnson died in 1877, and Orr in 1880. The plaintiffs became the owners of the land upon which the spring stood in 1884, and the defendants became the owners of the cheese factory, which continues to be operated: - In July, 1888, this action was brought to recover rent from the defendants for using the waters of the spring in their business of manufacturing cheese. Issue was joined, and a trial was had before a justice and jury, which resulted in a verdict of $100 in favor of the plaintiffs. A motion for a new trial was denied, and the defendants appealed to this court from the judgment and order.

The sole question on this appeal is whether the right or interest created by the above instrument was simply personal, terminating with the death of Johnson, or whether it inured to the benefit of the cheese factory while it continued to be used as such. The trial court held that it terminated with the life of Johnson, and that after that the plaintiffs were entitled to the value of the use of the water taken for cheese manufacturing purposes. Upon that ground the plaintiffs recovered. It appears from the instrument and case that water from the spring had been used for the purposes of this factory before the writing was executed. The word “indenture, ” which the instrument is called, imports in its broadest sense a conveyance. The term “grant” is defined as the passing of real estate from one to another. While the instrument in this case was in form executed to Johnson, yet it provides in terms for the use of such water, “solong as the same shall be used for the purpose of running a cheese factory,” on complying with certain conditions therein mentioned. 1 Rev. St. 748, § 1, is as follows: “The term ‘ heirs ’ or other words of inheritance shall not be requisite to create or convey an estate in fee, and every grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless an intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant. ” In Nellis v. Munson, 108 N. Y. 453, 15 N. E. Rep. 739, it was adjudged that an easement to carry water across the lands of another, for the benefit of the dominant estate, is an interest in fee or of the freehold, within the meaning of the statute. In that case the instrument was not acknowledged or recorded. It was therefore held to be void as against the purchaser. In the case at bar the instrument was both acknowledged and recorded. The omission of the words “heirs or assigns” did not limit the extent of the grant. Nicoll v. Railroad Co., 12 N. Y. 121; Cole v. Lake Co., 54 N. H. 242, 243-278; Kirk v. Richardson, 32 Hun, 434, 435. A cheese factory in the neighborhood or locality may be of great value and convenience to the surrounding country. One purpose of making the instrument was manifestly to insure the continued use of the factory. The consideration named in the instrument was entirely immaterial. Bliss v. Greeley, 45 N. Y. 671; Manufacturing Co. v. Veghte, 69 N. Y. 16. The special term, in denying the motion for a new trial, construed the instrument as personal to Johnson. A careful reading shows no such limitation. It was manifestly intended to enable the factory to be kept in use. The fact that Johnson was then its owner caused the instrument to be drawn to him. The words “heirs or assigns” were not used, nor was it necessary that they should have been. The value of the cheese factory might be practically destroyed if the right to use the water from the spring should be confined to the life-time of the owner, which might be of short duration. The whole instrument clearly implies that its central purpose was to secure water for the use of the factory upon the conditions being complied with. There were no words of limitation confining such use to the life-time of Johnson. It is not alleged or claimed that any of the conditions contained in the instrument were not fully performed and kept by Johnson and his successors. The form of the indenture shows that it never entered into the contemplation of either party that rent should accrue or be collected. Importance was attached by the special term to the words indicating that the instrument was a lease. In Genet v. Canal Co., 122 N. Y. 505, 25 N. E. Rep. 922, it was held that a contract which stated that the plaintiff and her husband, as parties of the first part, for certain considerations specified, “hath leased, and doth hereby lease,” to defendant certain lands, vested an estate in fee in the coal, etc., which shows that calling the instrument a “lease” does not limit its construction, numerous cases have been decided upon a great variety of facts which would throw no particular light upon the questions involved in this controversy. The learned justice at special term states, in substance, that the defendants’ contention would be correct if the instrument could be construed as one executed for the benefit of the factory. But he limits its construction to the use of Johnson personally. Having reference to the terms of the grant and circumstances surrounding the making of the instrument, including the conditions existing at the time, a construction should be adopted, if the language used will admit of it, which secures the benefit of the water for the manufacture of cheese so long as the building is used for that purpose. It is a fundamental principle of construction that, when the terms of the grant are doubtful, they will be taken most strongly against the grantor. Kilmer v. Wilson, 49 Barb. 86-88; Hermon v. Roberts, 119 N. Y. 37, 23 N. E. Rep. 442. Coleman v. Beach, 97 N. Y. 545, cited by the learned justice at special term, is not in conflict with this rule. The learned judge, delivering the opinion in that case, says, on page 553: “The rule governing controversies between grantor and grantee, by which the language of the conveyance is to be taken most strongly against the grantor, has no application when the dispute occurs between parties claiming under the same conveyance, and who are entitled to the benefit of the same rule of construction.” In the case at bar the grantor invokes one rule of construction, which would benefit him, and the grantee a different one, which would secure a different result. In this case the exact question is whether the grantee shall have the benefit of the general rule of construction. The case cited at special term has no application. The learned counsel for the respondents cites Jackson v. Van Hoesen, 4 Cow. 325, in support of his position. It has no application, as that case was decided before the Bevised Statutes, when the words “heirs and assigns” were material. It follows that the judgment and order must be reversed, and a new trial granted. All concur.  