
    Carroll vs. Cockey's Adm'rs.
    Appeal from Baltimore County Court. This was ait action of covenant, brought by the appellant against the' appellee. At the trial, .the plaintiff read in evidence the deed mentioned in the declaration, dated the 18th of July 1788, between John Gockey, the defendant’s intestate, of the one part, and the plaintiff, of the other part, whereby in consideration of the sum of J3000 current money, the said Cocfcey granted, &c. unto the plaintiff, his heirs and assigns, for ever, all that part of three tracts of land called Gockey’s Trust, Helhnore, fy Gockey’s Recovery, situate in Baltimore county, which is contained within' the metes and bounds, &c. following, to wit, beginning, &c. containing SOOf acres of land more or less, &c. The deed contained the following covenants: “And whereas there issue out of Jones’s Tails two races or water courses into that part of said tract of land called Cockey’s Trust, still remaining unsold, which said races or water courses intersect the above mentioned S 3a° E 359 perch line, one of which said races lays northwesterly about 30 perches from the end of the said S SY5 E 359 perch line, the other near the B westermost part of said Cocksy's Trust: And whereas it is agreed by and between the said parties to these presents, that the said Carroll, his heirs, &c. shall have the full benefit of the said two races or water couiv.*», as soon as the same shall intersect the said S 3¿° E 359 parch line,’ and that the said Cockey, his, heirs, &c. shall not at any time hereafter alter, change or divert, the course of either of the said two races or courses of water, out of his land, by any other ways or channels than those now laid out through the said S 3.1° E 359 perch line. And the said Cockey for himself, &c. doth hereby covenant, &c. to and with the said Cairel!, his heirs, &c. that he the said Carroll, his heirs, &c. shall have the full and free use and entire benefit of the said two races or water courses, as soon as they intersect the said S 3¿'' E 359 perch line, and that neither he the said Cockey, his heirs, &e, will at any timo hereafter alter, change or divert, the course of the said races or water courses, from their present sources, through their present channel, or injure the said waters in theft said courses; but that the same shall flow freely and ttnintevrupfediy through their present channels, until they intersect the said S 3Io E 359 perch line, except such part thereof as may be necessary to water the meadows of the said Cockey, his heirs, &c. in the said three tracts of land; and the said Carroll, his heirs, &c. shall have free access, with or without workmen, to the sources of the said races, to increase the streams of water, or to do any other matter or thing to them that he the said Carroll, his heirs, &c. may find necessary for their improvement. And the said Cockey, for himself, &c. doth hereby further covenant, &e. to and with the said Carroll, his heirs, &c. and to and with every of them, by these presents, that he the sgjd Cockey, his heirs and assigns, shall and will, at all times hereafter, keep the said races or water courses, proceeding from the southwestermost part of the said Cockey’s Trust, in good order and repair through the said tract, until it intersects the said S 3¿° E 359 perch line, and that he the' said Cockey now is the true and lawful owner of the said’ part of the said three tracts of land,” &c. Hie plaintiff also gave in evidence the plots and explanations returned in this cause, (the land having been surveyed under a warrant for that purpose,) and that the locations made by him on said plots were correct. He also gave in evidence, that from the time of making the said deed, to the present time, the water hath not flowed in any manner, nor at any time, along the said race or water course issuing out of Jones’s Fulls at the point B, as designated on the plotsy and that the said John Cockey in his life-time, and before the bringing of tliis suit, was frequently requested, on the part of the plaintiff, to causa the said water to run along the,said race, as designated on the plots, up to the S 3$** E 859 perches line in the said deed mentioned, but always refused or omitted so to do. The defendants then gave in evidence, that at the time of making the said deed, the. water of Jones’s Falls did not flow along the said race issuing out as aforesaid at B, nor along any part thereof, and that the said water could not so flow, as the said race was, at the time of making the said deed, and then prayed the opinion of the court, and their direction to the jury, that according to the true construction of the covenant in the said deed, John Cockey-- was bound to leave the. races, mentioned in said covenant and declaration, in the situation they were at the time the covenant was m.ade, and should keep them in repair in the situation they then were, or in which the plaintiff might afterwards place them; and that if the jury should be of opinion that said Cockey had done, no act to obstruct, after, change or divert, the course of the. water in either of said races, since the making of the. covenant, and that the water in the upper race could not and did not flow along said yace to the divisional line, without any act done or permitted by said Cockey to prevent it, and that the. said Cockey at all times allowed and permitted the plaintiff, with or without hands, to enler on his lands, and to widen, deepen or increase, the said, Streams, for their improvement, or to do any other matter or thing to them that the plaintiff might deem necessary, that thpq the plaintiff was not entitled to recover in this action. And the Court, [Nicholson, Ch. was of opinion, and so directed the jury, that upon a construction of the whole Covenant taken together, the intention of the, parties Was, that Cockey should permit the water to flow through certain channels over his land, as designated in the. covenant, tjie benefit of Carroll, and that if the water did, a$ the date of the covenant, flow through those channels or races, Coche}) was bound to keep them in such order and repair as that the water might always after continue, to flow as freely as at that time; but that if the water did not and couhl not come into and flow through the upper race pr channel, at the date of the covenant, then Cochey was not bound to deepen or widen the race for the purpose of conducting .be water to the land purchased by Carroll. The plaintiff excepted; and the verdict and judgment being against him, lie appealed to this court.
    
      Intuíéed of con* vcytmoe from A to B, for a part of a tract of land called C, described !>y courses and distances, there was a covenant by A <vit!i B, stating that “whereas there issue out of Jones's Falls two races or water courses, into that part of C remaining unsold, which races intersect the S 3 deg E 359 perch line,” one of the courses of that part of ¿7, conveyed by A to 3Í, and it was agreed between the parties, and covenanted by A with 33, “that B, his , W»*s and assigns, shall have the full and free use and entire benefit of the stud two races or water courses, soon as they internet the said S 3 deg, E 359 perch line, and that neither A, nor his heirs, &c will at any time hereafter alter, change or divertí the course of the said, two races or courses of water, from their present sources, through their present channel, or injure the said waters in their said courses,hut that the same shall flow freely and uninterruptedly through their present channels, until they intersect the said S 3 vleg E 359 perch line, except such part thereof 4 jnay be necessary to water the meadows of (hesaid A in bis lands; and that B shall have free access, with or without workmen, to the sources of thfe said races, to increase the streams of water, or to do any other matter or thing to them that he mjy find necessary for their improvement: and that A shall and will at all times hereafter keep the said r*&ce* or water courses, proceeding from the aouth\vester° mpit part, of the tract called C, in good order am» repair, through that tract, until it intersects the aaid S 3 deg, E 369 perch line1* — Held, that upon a construction of the whole covenant taken together, the intention of the parlies was,' that A .should permit the water to flow through certain channels over his land, as designated in the covenant for the benefit of B, and that if the Wut'T did, at the date of the covenant, flow through those channels or races, A was bound to keep them in such order and re-i pair, as that the watei might always after continue to flow as I’reeiy as at that time; hut that it the; water did not and could not come into and flow through the upper race or channel at tin* date of the covenant, then A was not bound to deepen or widen the race for the purpose of conducting the water t,o the laud purchased by 3*
    
      The cause was argued before Buchanan, Earle, and Johnson, J. by
    
      Harper, for the Appellant;
    and by
    
      Winder, for the Appellees.
   JUDGMENT AFFIRMED.  