
    Peter S. Voorhees, Appellant, v. Henry Burchard, Respondent.
    (Argued November 12, 1873;
    decided November 18, 1873.
    In determining what and how much shall pass as an incident, appurtenant to that in terms conveyed by a grant of a mill site and appurtenances, it is the necessity of the mill for its- full and free enjoyment which controls.
    R., owning certain premises upon which was a saw-mill, conveyed by metes and bounds the portion thereof upon which the mill was located, with appurtenances, describing it as his mill property. Between the premises conveyed and the highway was a piece of land, for many years used as a way to the mill and as a mill-yard for storing logs. There was no other access to the mill from the highway, and the use of the land was necessary to the mill as a mill-yard. Held, that an easement in said land for a way and for a mill-yard was carried with the principal thing conveyed.
    Also held, that the fact that the owner of the land, subject to such easement, had exacted toll for its use as a mill-yard of the occupants of the mill, did not, as against one not showing himself prejudiced thereby, vary the rights of the parties or estop the owner of the mill property and his licensees from insisting upon his actual rights.
    The opinion of the grantee in such a deed of the effect thereof, or as to what the effect should be, cannot affect the rights of a subsequent grantee, who has bought with a right to rely, and relying, upon his grantor’s title.
    A party seeking to enforce the rule that facts, though proven, are not available unless pleaded, must take this ground at the trial, otherwise he cannot avail himself thereof on review.
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of defendant, entered upon the report of a referee. (Reported below, 6 Bans., 176.)
    This was an action of trespass upon lands.
    On the 14th August, 1860, Ransom Rathbone being the owner of certain real estate in the town of Rathbone, Steuben county, upon which was a saw-mill and grist-mill, made to Henry W. Rathbone a conveyance of a portion thereof, designated as “ being the mill property of the said Ransom Rathbone, in the village of Rathboneville,” then giving metes and bounds, embracing seven and nine-tenth acres of land, with appurtenances. On the 5th July, 1865, Henry W. Rathbone conveyed the same premises, by the same designation and description, to Francis J. Brady. In front of the mills is an open space extending to the highway, and containing about sixty-two rods of land. This piece of land, which was the locus in quo, was not included within the boundaries of the deed; it then was owned by Ransom Rathbone, and the title thereto subsequently passed by various mesne conveyances to the plaintiff. It had been used as a mill-yard for the deposit of logs, and lumber sawed there, for forty years, without interruption, and during twenty-five years of this time, prior to the conveyance by him, it was so used by Ransom Rathbone. It was also used as a way to the mills, there being no other means of access from the highway thereto. The trespass complained of was the deposit of saw logs on the open space in front of the mills, which was done by defendant under license from Brady. The first interference with this right was about a year prior to the purchase of the plaintiff, and two years after that of Brady, when Wrn. R. Rathbone exacted of one Wilbur, who was then operating the saw-mill under Brady, as a consideration for the privilege of depositing logs on the premises, the deliveryto him of one slab from each log so deposited and sawed at the mill. It is claimed by Brady, and was so found by the referee, that the use of this entire mill-yard is necessary to the beneficial enjoyment of the mills.
    
      WilUam Rumsey for the appellant.
    Plaintiff was the owner in fee of the locus im, quo / and whether in possession or not, could maintain trespass for any unlawful entry upon it. (Wickham v. Freeman, 12 J. R., 183; Van Rensselaer v. Radcliff, 10 Wend., 652, 653; Adams v. Rivers, 11 Barb., 390.) The word appurtenant in a deed only passes incorporeal easements, rights or privileges. (1 Bouv. L. D., tit. “ Appurtenances; ” Harris v. Elliot, 10 Pet., 25; 4 Kent’s Com. [11th ed.], 467, marg. note i / Jackson v. Hathaway, 15 J. R., 447; Co; Litt., 121 b ; Burke v. Nichols, 2 Keyes, 670-672.) Defendant must, if there has been a right of way formerly used over the land, use that one. (Washburn on Easements, 162, 163, 167, and cases cited; 3 Kent’s Com., 420 ; Holmes v. Seeley, 19 Wend., 507.) The right of way could only be oyer so much of the land as was necessary for that purpose. (Nichols v. luce, 24 Pick., 102; Holmes v. Seeley, 19 Wend., 507; Boyce v. Brown, 7 Barb., 80-89; Williams v. Safford, id., 309-311.) Defendant could not use the land in any way other than as if it was a highway. (Adams v. Rivers, 11 Barb., 390; Viall v. Carpenter, 14 Gray, 126.) The referee erred in holding that the right to use the locus in quo as a mill-yard to the mills passed as appurtenant to the mill property. (Wash. on Easements, chap. 2, § 3, p. 19; id., chap. 3, § 23, etc.; Nichols v. Luce, 24 Pick., 102, 103 ; 4 Kent, 467, 468, and notes; Huttemeier v. Albro, 18 N. Y., 48-51.) The easement could not have been gained by adverse possession, because the referee finds that B. Bathbone owned both pieces of land until 1860; and while he owned it ho right was acquired by the fact that this easement existed. (Gayetty v. Bethune, 14 Mass., 49; Huttemeier v. Albro, 2 Bosw., 456; Brakely v. Sharp, 1 Stockt. [N. J.], 9; Wash. on Easements, chap. 1, § 10, p. 8; 6 Lans., 176.) The fact that the right of depositing logs on this land was necessary for the use of the mill, not being pleaded, was not available. (Field v. Mayor, etc., 6 N. Y., 179, 189 ; Post v. Pearsall, 22 Wend., 425.) The fact that this easement was necessary does not make it pass with the deed, because the grantor had no power to convey it. (Pettingill v. Porter, 8 Al, 1-6; Tourtelott v. Phelps, 4 Gray, 370, 378; Babcock v. Utter, 32 How. Pr., 439, 452; Huttemeier v. Albro, 18 N. Y., 52; Wash. on Easements, chap. 3, § 21 [1st ed.], p. 41; Crippen v. Moss, 49 N. Y., 63, 68; Walsh v. Powers, 43 id., 24, 27 ; Matthews v. Coe, 49 id., 61; Tabor v. Bradley, 18 id., 109, 111; Curtiss v. Ayrault, 47 id., 73-79; Simmons v. Cloonan, 47 id., 3; In re N. Y. C. R. R. Co., 49 id., 418.) Title by prescription is measured, not by what is necessary or by the value of the property, with or without certain easements, but by what has been actually used as an easement. (Wash, on Easements, chap. 4, §§ 25-39, pp. 85, 95; Hall v. Augsbury, 46 N. Y., 622-625 ; Le Boy v. Platt, 4 Paige, 77-82; Richardson v. Pond, 15 Gray, 387; 2 Greenl. Ev., § 659 a; Brooks v. Curtis, 4 Lans., 283.)
    
      John W. Dininny for the respondent.
    By the devise of the mill with the appurtenances, a right to the land used with the mill passed. (Bouv. L. D., 119 ; Blaine v. Chambers, 1 S. & R, 169; Whitney v. Olney., 3 Mason, 280; Jackson v. Hathaway, 15 J. R., 454; Leonard v. White, 7 Mass., 6; Bardwell v. Ames, 2 Pick., 33; 2 Hillard, 113, 114; Angel on Water-courses, 163, §§ 156, 157; Pickering v Staples, 5 S. & R., 107; Orleans Nav. Co. v. Orleans, 2 Math., 214; Blake v. Clark, 6 Greenl., 436; Thompson v. Andover Bridge Co., 5 id., 62; Kenedy v. Scofield, 12 Con., 317; Dyer v. Depue, 5 Wheat., 584; Broom’s Leg. Max., 198; Oakley v. Stanley, 5 Wend., 522; Huttemeier v. Albro, 18 N. Y., 48; Tabor v. Bradley, id., 109-114; U. S. v. Appleton, 1 Sumn., 492.) When land is conveyed by metes and bounds, the privileges used in connection with it at the time of the conveyance will pass as appurtenant to the land described, unless the right to subserve them is expressly reserved. (Lampson v. Wilks, 21 N. Y., 505, 513; Robbins v. Barnes, Hob., 131; Nichols v. Chamberlain, Cro. Jac., 121; N. T. Fac. v. Bachelder, 3 N. H., 190; 5 Wend., 525 ; 47 N. Y., 39; 17 Mass., 443 ; Tabor v. Bradley, 18 N. Y., 109, 114; Hazard v. Rolman, 3 Mason, 272; Blain v. Chambers, 1 S. &. R., 169; People v. Kingman, 24 N. Y., 559; Hasbrouck v. Vermilyea, 6 Con., 677.) A general property in real estate is not sufficient to support an action of trespass guare clausum fregit. (Campbell v. Arnold, 1 J. R., 515; Toby v. Webster, 3 id., 468 ; Hyatt v. Wood, 4 id., 150; Rich v. Baker, 3 Den., 79 ; 9 Bacon’s Ab., 458, and cases cited.) The referee’s report is conclusive upon all facts found by him. upon which evidence was given tending to establish them. (2 Keyes 9, 539; North v. Bloss, 30 N. Y., 381; Grant v. Morse, 22 id., 323; Marco v. L. and L. Ins. Co., 33 id., 664; 39 id., 350; 26 id., 82; 22 ,id., 4£6; 31 id., 507; 33 id., 9.) The onus is upon plaintiff to ¡show ,an erroneous legal conclusion deduced by the referee from the facts found. (Mead v. Bunn, 32 N. Y., 275, 279.)
   Folger, J.

No right or interest in the locus m quo is, by the terms of the conveyances, carried to Henry W. Rathbone or to Brady. But some things pass by a conveyance of lands, as incidents appendant and appurtenant thereto, .though not named therein. This is the case with a right of way, or other easement appurtenant to land. So that, in the case of a devise of a mill and appurtenances, that is carried which was actually used by the testator in his lifetime as appurtenant, or by his devisee soon after his death, or, in the absence of .evidence of either, that which shall be found by a jury to be necessary. (Blaine's Lessee v. Chambers, 1 Serg. & Rawle, 169.) And in the case of a conveyance of land, described as the same on which a mill stands,” everything passes necessary for the full and free enjoyment of the mill. (Comstock v. Johnson, 46 N. Y., 615.) And though the description in the instrument may not cover the thing claimed as appurtenant, the same will pass if it is apparent from the conveyances, and the circumstance^ connected with the manner of the use and enjoyment of the land, that it is included in it. (Huttemeier v. Albro, 18 N. Y., 48.) It is to be observed in the first of these cases, which is a leading one, stress is laid upon the fact that the devise was of the mill, with the appurtenances; and the necessary water, with a race to conduct it, it is said was appurtenant. It is also suggested that there must haye been a small parcel of land adjoining; how much, and how situated, being a fact to be inquired of by the jury,—in which inquiry they were first to seek what was actually used by the testator; failing in this, what was occupied by his devisee soon after his death; and finding no trace of this, then to decide by their own judgment what was necessary, and to presume that it was intended by the testator. But the controlling thing is this, how much and what was necessary for the mill; the actual use by the successive owners being evidence of this. And so, also, in the case secondly cited, it is the necessity of the mill for its full and free enjoyment, which controls in indicating what and how much shall pass as an incident, appurtenant to that in terms conveyed.

The facts in the ease in hand are strong to show, that an easement in the locus in quo, for a way and for a mill-yard, was carried with the principal thing conveyed. The mill site was conveyed to Henry Bathbone by the description of the mill property of Bansom Bathbone; to which is added a more particular description by metes and bounds, comprising but about seven and nine-tenth acres of land. The finding of the referee is, that the description is the same in this deed and in that from Henry to Brady. In the latter, the property is conveyed with the appurtenances. So it was then in the former. This property was and is chiefly valuable as a mill privilege. It has been used for that purpose solely, for forty years and more, and for twenty-five years of that time by B. Bathbone. Henry conveyed to Brady, under whose permission and license the defendant seeks to justify. The locus m quo is and has always been an open space in front of the mills, was owned by B. Bathbone when and long before he conveyed to Henry, and has for forty years been used by the owners of it as a way to the mills and as a mill-yard. The referee finds that it was, when B. Bathbone and H. Bathbone conveyed, and still is, necessary to the beneficial enjoyment of the mill as such way and yard. The testimony sustains the finding.

With'the rules of law, above stated, applied to, these facts, the defendant has made out a defence, unless the plaintiff has shown some countervailing facts, or some good reason in law why this case is an exception from those rules.

He claims that the answer has not set up the facts constituting the defence. This is true. He relies upon Field v. The Mayor, etc. (6 N. Y., 179), for the position that, unless pleaded, facts, though proven, are not available. He did not take this ground at the trial. In Barnes v, Perine (12 N. Y., 18) the case in,6 New York Reports is limited; and it is held that, unless taken at the trial, so that pleadings might have been amended, this objection cannot be availed of on review.

He further contends that the easement in the locus in quo, for a mill-yard, did not pass to Brady by deed from H. Rathbone, because the latter had not acquired it by deed from his father. So far as this rests upon the intention of H. Rathbone, testified to by him, that he did not intend to take it, nor to use the water-power for a saw-mill, and that he did not use it while he owned it, it is not tenable. H. Rathbone conveyed and meant to convey, to Brady, all he obtained from his father; and if the deed from his father carried this easement as appurtenant to that which was in terms conveyed, then it became Brady’s. For aught that yet appears, the deed from the father to H. Rathbone did carry this easement. His opinion of the effect of that deed, or his intention of what the effect should be, cannot change it nor affect the rights of the subsequent' grantee, who has bought with a right to rely, and relying upon his grantor’s title. The referee has not found, nor was he asked to find, whether, as a feet, there was any intention on the part of. Henry and his father, in setting forth in the deed a description by metes and bounds, to 'limit the rights of Henry and his grantees to the lines thereof. Henry did also testify that he took all that he thought he needed, and that nothing more than the right of way was necessary for the use of the mills. But upon the testimony of other witnesses the referee has found to the contrary. We are not at liberty to take anything as fact, or to make any inferences to the impeachment of the judgment, in which the referee has not preceded us.

In Pickering v. Stapler (5 Serg. & Rawle, 107) it is held that the declarations of the defendant, who was the grantee in the prior conveyance and the grantor of the plaintiff, that he had neither bought nor sold a certain water-right, could not vary the operation and effect of the two deeds.

Nor does the fact that the grantor of the plaintiff, and the plaintiff himself, exacted a toll for the use of the locus in quo, vary the rights of the parties. This was done in ignorance of rights. The plaintiff is not shown to have been prejudiced by such payment, and it does not estop Brady and his licensee from now insisting upon his actual rights. (Child v. Chappell, 9 N. Y., 246.)

It is also suggested that, as the deed from Ransom Rathbone did take from the whole property owned by him, in particular description by metes and bounds, a specific part thereof, and convey that to his son, the latter got no right to anything more than that which was thus specifically described and conveyed. It is at the same time conceded that the son and his grantees got a right of way, over that part of the premises not included in the description, to that which was. It is said that this is obtained from the necessity of the case, as there is no other way from the highway to the mill property, and there can be no beneficial enjoyment of the mill property without a way thereto. Is there not the same necessity for the beneficial enjoyment, that the open space be used for a mill-yard, as it has been for long aforetime % And does not the right so to use it now, arise from the same necessity ? A way, by necessity, is in fact acquired by grant; not by prescription but as an incident to the thing described and thus granted. (W ash. on Ease., 31; see Atkins v. Bordman, 2 Metc., 463.) Moreover, this suggestion is confined in its view to the particular part of the description in the conveyances. It does not consider the general part of it, by which they pass the mill property of Ransom Rathbone, which is this mill site as it had been used and occupied by him for many years, including not only the -land under and closely adjacent to the buildings, but all the easements which he had found necessary, and which are still necessary to the full enjoyment of the mill and water-power. The legal principle with which we started would be too much limited, if it was not, under circumstances such as those here presented, to include cases in which the owner of premises has carved out of them a mill site by a particular description of metes and bounds. There are cases in which it is held that, where conveyances on their face purport to convey only the lands within the boundaries described in them, nothing more than the lands are carried by them; such is Tabor v. Bradley (18 N. Y., 109). Yet, there, it is noted as an important feature of the case, that there is no allusion in the deeds to any mill or water-rights or privileges; and it seems to be there conceded that a deed, purporting to convey by metes.and bounds, may be legally construed, in the light of surrounding circumstances, to include also privileges annexed to, or connected with, the main subject of the grant. (Id, 114)

It has been often held that a conveyance, by metes and bounds, of a mill site, carries the right to take and convey and discharge water, from and across lands not within the boundaries given by the deed, for the reason that the power so to do is necessary to the full enjoyment of the property specifically conveyed. It is not perceived in what is the difference between an easement to conduct water to and from the mill, and an easement to use land to deposit logs and lumber for the purposes of the mill', when the last is, like the first, necessary for the beneficial enjoyment of the site. It is true that, at first flush it is apparent, that an absolute necessity exists that there should be a free way for water to flow to and from a water-mill. When the testimony and the findings establish a necessity as absolute, for the use as a mill-yard of a given space, theretofore continuously employed for that purpose, there can be no difference in the cases.

These views, leading to an affirmance of the judgment, it needs not to determine whether the principle of the case of Lampman v. Milks has applicability here.

There were several exceptions taken to the admission of evidence; they are sought to be maintained here on the ground that the testimony objected to was not admissible under the allegations of the answer. That should have been specified at the trial to make it now available. It was not.

The judgment appealed from should be affirmed, with costs to the respondent.

All concur, except Geovee, J., not voting.

Judgment affirmed.  