
    Hopestill Potter vs. Marshall Burton.
    The words of a grant, 11 give him the privilege of excavating and drawing down said cre,ek as low as he pleases at all timesf convey to the grantee the right to divert the whole water from the bed, or natural channel of the stream.
    This case comes into this Court by a Writ op Error to the Court of Common Pleas of the County of Erie.
    The action below was a case for diverting the water from a certain stream, called Cold creek, by the defendant, to the damage of the plaintiff in error, as averred in the declaration.
    The defendant plead not guilty. For the trial of this issué, the case was submitted to a jury, at the March term of the Court of Common Pleas, 1846, for Erie county, and a verdict rendered, and a judgment given for the defendant. This judgment is sought to be reversed by the prosecution of this writ.
    In Bank.
    Dec. Term, 1846
    The record shows that, on the trial in the Common Pleas, the plaintiff gave evidence-, to maintain the issue on her part, that the stream, called Cold creek, had ever run and flowed as set forth in her declaration, and that the defendant, in the month of August, 1845, constructed a dam across the stream, at his mill, above the plaintiff’s land, and thereby diverted and changed said stream of water from its natural channel, and conveyed it, through a race, to another mill of the defendant, situated on another stream, called Little Cold creek, and from thence turned the water back again into the natural bed of Cold creek, below the plaintiffs land, thereby entirely depriving the plaintiff of the use thereof.
    The defendant then offered in evidence the deed of Smith and wife, to Burr Higgins, and a release from the plaintiff to Higgins, The defendant offered to prove he derived title to the premises and privileges contained in Higgins’ deed, by other deeds of conveyance. To this the co'unsel for' the plaintiff objected, but the Court overruled the objection, and the testimony was admitted, and went to the jury; but to this ruling of the Court no exception is taken.
    The Court then charged the jury, on the construction of the deed to Higgins, that the rights and privileges therein contained having been transferred to the defendant, he had the right, by virtue thereof, to divert Cold creek away from its natural bed, where it flowed through the plaintiff’s land, permanently and perpetually, if it became necessary for the purpose of using the water power at the mill on Little Cold creek. To this charge of the Court of Common Pleas the plaintiff excepted.
    J. Wheeler, for Plaintiff in error.
    
      Beecher fy Lane, for Defendant.
    No arguments were furnished to the Reporter.
   Wood, C. J.

. The ruling of the Court of Common Pleas, upon the question of evidence raised upon the trial, as stated in the record, was not excepted to,'and is not before us. The 'exception goes only to the charge of the Court. If, however, the point was made upon the record, it would not aid the plaintiff. The evidence given was a direct link1 in the defendant’s title, and conduced to prove his right and authority to do the acts for which the áction was brought, and was, for. that reason, admissible. But this is not the important inquiry in this case. The real matter in dispute arises on the'instructions which were given to the juiy as to the. extent of the grant, in the conveyance from Smith and wife to Higgins, under whom the defendant holds. The .description of the property conveyed, and the extent of the grant, are, in substance, as follows:

f‘ Three acres of land within the bounds of lot No. 30, in ‘ said section, through which Big Cold creek passes, and better ‘ known as the Pettingale mill and lot, bounded as follows, &c., * containing three acres of land, with all the privileges and ap- * purtenances, and all the mill-gearing and apparatus, tools and ‘ the. like, attached and detached, in ‘and-about said mill and ‘premises: also',- all the right and privilege which we hold in. ‘ a certain deed from Samuel Pettingale, and by us recorded, ‘ upon the records of Huron county, to place the water, &c., ‘ (refer to the record for particulars,) and all the. right and ‘ privileges of water power, &c., upon our land, upon Big Cold ‘ creek, between our mill and said Higgins’ mills, and better ‘ known as being the south half of lot No. 30, in section 3, of ‘ said town, and on a seven acre fraction, which lays adjoining ‘ the aforesaid lot, on the south; and the right of access to any ‘ part of said Cold creek, on my premises, and all times to re- * move obstructions in said creek, or to excavate said creek, so ‘ as to draw down the water at his mill, and to keep the same c down, so as not to obstruct his wheel or wheels with back- ‘ water; and give him the privilege of excavating and drawing ‘ down said creek, as low as he pleases, at all times; and give ‘ him the privilege of excavating said creek, to a width sufñ- £ cient to draw down said creek as low as shall be necessary for £ his use at any future time. And we furthermore bind our- £ selves, heirs and executors., not to obstruct said creek in any £ way, or by any thing upon our premises, so as to prevent a £ free passage for the water, at all times, in said creek or £ channel.” .

It is not denied that this grant authorizes the full and complete use of the water power, in the natural channel of the stream, for the purposes mentioned; nor that the channel of the stream may be widened, and, by excavation, deepened at pleasure. But it is said the water must not be diverted from. its natural channel. We think even this right is conferred by these words in the grant: ££ and give him the privilege of ex- ‘ cavating and drawing down said creek, as low as he pleases, £ at all times.” If it was intended by the parties to this deed, that the water was to be used only in the bed of the stream, they have been unfortunate in the language employed to convey their meaning. To draw down a lake or pond, is to let off the water, and thereby diminish the quantity that remains; and to draw doion a creek, is to let off the water so as to lessen the volume below, in the bed of the stream, and is only to be effected by its diversion from its natural channel. The channel may be deepened, but that would not draw down, lessen or draw off the water. The same volume of .water would still continue to flow there, after, as before the channel was deepened.

But suppose the right from the whole grant, taken together, is doubtful, then the rule applies, that every grant shall be construed, in case of doubt, most strongly against the grantor.

We see no error in the charge of the Court, and the judgment below must be affirmed.

Judgment Affirmed.  