
    Moses King versus Peter King.
    Where land lying on each side of a river was owned by tenants in common, and they made partition of the same, by assigning the land on one side of the river to one, and that on the other side to another, it was held that the two tracts were to be considered as separated by the thread or central line of the river.
    This was a writ of entry sur disseisin, in which the demandant counted upon his own seisin of “ three undivided eighth parts of that certain part of the mill privilege at and upon the.great falls of Sheepscut river, which lies eastward of the centre of the said river,” and upon a disseisin by the said Peter on the day of the purchase of his writ.
    The action was tried upon the general issue before Thatcher, 2 It appeared at the trial that Benjamin King, father of the demandant, and also of the tenant, was seised of two tracts of land, situate opposite to each other, on the east and west sides of the river, and adjoining thereto, conveyed to him by boundary lines which include a part of the river where it passes over falls, and forms a site for mills, and that he died seised of the same. It further appeared that upon these falls the said Benjamin, in his lifetime, had erected a sawmill and a grist-mill on the western side of the river.
    After the death of the said Benjamin, the tenant,
    together with his two brothers, Elijah King and Benjamin King, by their deed, dated the 12th of April, 1802, released to the demandant a lot of land on the west side of the river, being part of the aforesaid tract of which their father died seised, also all their right in and to three fourths of a saw-mill standing at the great falls on said Sheepscut river, and to three fourth parts of said mill privilege and yard, (saving and, excepting the privilege of the grist-mill, and. so much [ * 497 ] of the yard as will accommodate the samej) the * said mill yard being bounded easterly on the said Sheepscut river, and westerly on the before-mentioned lot released to the said Moses, and containing one acre, more or less.
    
    By another deed of the same date, the demandant, with his two brothers, Elijah and Benjamin, released to the tenant one fourth part of the grist-mill, mill yard and privilege, mentioned in the other deed, also two tracts of land on the east side of the river, and adjoining thereto, one of which tracts is bounded as follows : — Beginning at a stake and stones at Sheepscut river, thence south-east two hundred and fifty rods, thence north-east fifty rods, thence north-west to said river, thence down the river to the first-mentioned bounds.
    At the trial, the demandant’s counsel offered in evidence a copy of the inventory and appraisement of the estate of the said Benjamin King, deceased, in which the lands on the west side of the river, the lands on the east side of the river, and the mill privilege, were separately inventoried and appraised as distinct parcels of the estate; and to prove by witnesses that the falls demanded in this action have always been known and called by the name of the mill privilege, and at the time of the execution of the deeds above mentioned, (which were made on the division of their father’s estate among the said children,) the said privilege or mill privilege mentioned in the deed of the said Peter King and others to the said Moses, was understood and intended by the parties to describe and convey the said privilege or portion of the falls demanded.
    But the judge refused to receive the evidence, and, a verdict being returned for the tenant, the demandant filed his exceptions to the decision of the judge.
    And now Mellen, in support of the exceptions,
    argued that it was competent for a party to show by parole testimony what was intended by appurtenances to the principal subject of a conveyance ;  and he said that the phrase mill privilege, which was used in the deed in the case, sometimes means nothing more than an easement, or a * right to use the water of a stream : here [ * 498 ] it was understood by the parties to that deed as describing the bed of the river, or the land over which the stream passes, and on which the mill is placed, and land adjoining and commonly used with the mill. In the case of Hearn vs. Allen, 
      
       where the question was, whether, by a devise of a house cum.pertinentiis land four miles from the house, but occupied with it, should pass, parole testimony must have been received
    
      
      
        Com. Dig. Grant, E. 9.
    
    
      
      
        Cro. Car. 57.
    
   Lee and Wilde, for the tenant, were stopped by the Court, whose opinion was the next day delivered by

Sewall, J.

Benjamin King, father of the demandant and tenant, was entitled, in his lifetime, to two tracts of land, situate on the east and west sides of Sheepscut river, described and conveyed to him by boundary lines which include a part of the river, and of course by the legal operation of his title, the falls and bed of the river, with all permanent water privileges, wherever the river flowed between the tracts of land conveyed, or covering any part thereof. It is also stated in the exceptions, that upon these falls and water privileges, on the west side of the said river, the father in his lifetime had erected a saw-mill and grist-mill; and from the two deeds in the case, under which the parties claim exclusively of the other children and heirs of Benjamin King, deceased, it appears that a tract of land, also on the west side of the river, had been appropriated to these mills as a mill yard.

In these deeds the parties are recited to be the sons and heirs at law of the said deceased, and their evident intention is, and so it is stated in the exceptions, to make a partition and assignment of their father’s real estate, or of that part of it which lay upon Sheepscut river. For this purpose, Peter, the tenant, with Elijah and Benjamin, release to their brother, the demandant in this action, a lot of land situate on the west side of the river, and all their right to three fourths of the saw-mill standing at the great falls, &c., * and to three fourths of said mill privilege and yard; ex- [ * 499 ] cepting the privilege of the grist-mill, and so much of the jard as will accommodate the same, &c. And for the same purpose, Moses, the demandant, with the said Elijah and Benjamin, release to .their brother Peter, the tenant in this action, the lot of land on the east side of the river, describing it as extending by a line running north-west to the river, and thence down the river to the other bounds.

These instruments are to be construed together; having been executed between the same parties, at the same time, and respecting the same subject matter, and therefore forming one instrument. And their most obvious import is a partition of the tracts of land adjoining Sheepscut river, belonging to the father; and an assignment of two parcels that lie on the western side to Moses, and of that on the eastern side to Peter; and the legal operation of this partition and assignment is, that the falls and bed of the river, and the water privileges, were alike divided and assigned, as parcel of the two tracts, which, after the partition, were to be considered as separated, so far as they lie opposite to each other upon the river, by a central line, or the thread of the river, as it is sometimes expressed.

But it is contended for the demandant, that the said mill privilege and yard, three fourths of which are released to him, included all the mill privileges which belonged to the father, as well those on the eastern, as those on the western side of the river. This construction militates entirely with the deed to Peter, which is without any exception or reservation to apply or answer the purposes of this construction. And it is certainly not a necessary construction ; for the words in question are fully satisfied by their application to the mill privilege and yard then known, appropriated and occupied for the use of the saw-mill and grist-mill; and, considering the exception following in immediate connection, it would be difficult, I" * 500 ] taking the deed to * Moses alone, to give to these words any other construction.

As to the motion for the admission of parole evidence, to control or aid in the construction, the Court are unanimous in the opinion that it was justly overruled at the trial. The evidence, if admitted, must have been employed upon a question of the legal construction and operation of a written contract, expressed without any reference to extraneous circumstances, or any latent ambiguity.

Judgment according to the verdict.  