
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1809.
    H. Lide v. William Thomas.
    ¿efenjant( ;n a ¿ee(j 0f bargain and sale by way of release, conveyed a tract of land to the plaintiff, and described the same as containing, or comprehending, a mill seat, with a pond of water. It appeared on the trial of an action of covenant, brought by the purchaser on the release, that there had been a mill built on the land, which had been in opera, tion many years prior to the sale, and that the vendor had rebuilt a saw mill, and had in operation the same mill, at the time of the sale ; and that the chief object of the purchaser, was the expectation of a mill with sufficient water. And it further appeared, that after the purchase, a third person claimed part of the land, which the purchaser supposed belonged to the land purchased by him, but which was not strictly within the terms of the release, except by implication ; and such third person having sued for damages, for overflowing the land claimed by him, obtained a verdict for the same, by which some of the land covered by the water of the mill pond, according to its former dimensions, was rendered useless to the plaintiff. It was adjudged that the warranty by the covenant of a mill seat, with a pond of water extended to the land covered by water, belonging to the said third person; and that the loss of this land, occasioning a diminution of the pond and head of water, by which the value of the mill seat was much reduced, entitled the plaintiff to a total rescisión of the .contract, or an adequate abatement of the price paid.
    The warranty of a mill seat was held to bind the seller, to make good the same according to the reasonable expectation of the purchaser.
    Motion for a new trial, from Darlington district. Action of covenant, tried before Bay, J.' The covenant, upon which the action was founded, was contained in a deed of bargain, sale, and release, from the defendant to the plaintiff, in (in consideration of $500,) of 150 acres of land, more or less.
    
    The deed pursues the form prescribed by the act of assembly ; and sets forth that the defendant has granted, and doth grant, &c., to the plaintiff the said land, situated “on Hurricane Creek, con. tabling a mill seat, with a dam, and timber ready for building; which mill seat, dam, pond, timber, and all other appurtenances to the said premises belonging, I do hereby warrant, and defend, to the said Hugh Lide, his heirs, and assigns, forever.”
    It appeared in evidence, that after the plaintiff purchased the premises, he erected saw and grist mills, on the same site whereon a mill had formerly stood, and which was referred to in the deed ; and that the pond of water was not raised to a greater height than it had formerly been; but the water flowed back upon, and inundated some land which belonged to Samuel Benton, who brought an action against the plaintiff for overflowing his land.
    Upon the investigation of Benton’s claim it appeared, that he was entitled to the land which one half of the' water in the mill pond covered; but not to any part of the land mentioned in the deed of conveyance from the defendant to the plaintiff.
    
    Benton recovered a verdict against the plaintiff for $1000, to be released upon condition that he would forthwith draw off the water from Benton’s land ; in consequence of which, he was compelled to reduce his dam, so as to leave a head of water not above three feet high, by which his sawmill was ¡tendered entirely useless.
    It further appeared, that the-plaintiff could not erect a mill on a more advantageous situation any where on the said land.
    Bay, J., was of opinion, and so charged the jury, that the plain, tiff was not entitled to recover, since there was no deficiency of the quantity of acres conveyed, and since there was on the land conveyed, a mill seat, dam, and pond; and that the covenant, or warranty, should be construed to extend only to the appurtenances to the land appertaining, and not to advantages, or conveniences, adjoining, or adjacent to the land; or to the capability, or sufficiency, of the water pond, or dam.
    Verdict for the defendant.
    WiTHERSRoossr, in support of the motion,
    contended, that it would appear, from a proper construction of the deed of bargain and sale, that the defendant had covenanted to convey to the plaintiff, by the words mill seat, dam, and pond, a right to appurtenances which did not belong to the land ; and that the plaintiff purchased the land under an expectation that he’should thereby acquire the possession and enjoyment of sufficient head of water to turn a sawmill. That the water was not raised by him beyond its former height. That the pond was warranted to him, according to its former limits, or extent. That it was unknown to him, when he made the purchase, that it extended beyond the limits of the land purchased, and flooded the land of Mr. Benton. He purchased under the belief that it did not; and under the impression' that, at all events, the defend, ant was bound to warrant the premises as represented. That, although the defendant could not covenant to indemnify him in committing a trespass on his neighbor’s land, yet he could covenant, and had done so, that on the land there was a millseat, and a pond of water, sufficient to work a mill; and that this covenant he had not kept. Deeds ought to be construed liberally, ut res magis vale* at quam pereat. 2 Wils. 75, S.
    
    Blanding, contra.
    
    Deeds ought to be construed according to the intention of the parties. The words, “ with the appurtenances ^ ga;<] premises belonging,” shew the intent; and cannot be construed in reconciliation with a warranty of any convenience, or advantage, not appurtenant to the land itself; to the estate con-> veyed. To extend the meaning of such a warranty to appurtenances of other lands adjacent to the land conveyed, would be absurd and dangerous. The land in question did possess the appurtenances in the deed, particularly mentioned. On it was a mill seat, a dam, and a pond. The warranty was not intended to apply to the goodness or sufficiency of, the mill seat. Of these, the purchaser was as capable of judging as the seller.
   Smith, J.,

delivered the opinion of the court. It appeared in evidence, that the pond, when reduced so as to draw off the water which flooded Benton’s land, was insufficient to turn a mill. It is evident the parties both contemplated the erection of a mill on the premises ; and the use of the pond, according to its former dimensions. The fair construction of the contract is, that the warranty was meant to extend to the whole mill pond, according to its former .capacity and extent. It is clear, that the plaintiff could have intended nothing else. It appeared in evidence, that the land without the mill seat, was comparatively worthless. The parties, neither of them, it is fair to conclude, knew that the water, by reason of the dam, was raised so as to overflow the land of Mr. Benton ; and especially, because Benton had never before complained of it, or objected to the stopping of the water, But the plaintiff is under the necessity of contracting the pond, in order to avoid trespassing on the land of his neighbor, in such a manner, that it is of no use to him in respect to the main object of the contract. He has therefore, been deceived, as to the prime object in making the pur. chase. The principal consideration has failed. His views and expectations have been disappointed, and he has sustained a considerable loss in consequence of the contract. This loss is imputable to the defendant. It has happened in consequence of his representation and warranty. The plaintiff does not appear to have relied on his own judgment, or information, as to the sufficiency of the pond. He relied on the defendant’s warranty. It was generally known, or believed, that the pond was sufficient for a mill,, and a mill had been formerly in operation on the place. The words-of the warranty, under the circumstances of the case, were ealeu-lated to raise the expectation that the whole pond was included in the limits of the land conveyed. That this must have been the impression of the plaintiff, is clear from evidence dehors, the deed. This evidence ought not to weigh in contradiction to the deed, or to vary its meaning, if plainly deducible from the deed itself. But evidence was admissible to shew that there was no mill seat. To shew that there was a breach of warranty, the evidence did shew that there was no pond, sufficient to turn a mill, appurtenant to the land ; and, consequently, that the land did not contain a mill seat; for without a sufficient head of water, there cannot be a mill seat. It was, therefore, proved, that the defendant was liable for a breach of warranty, and that the plaintiff was entitled to damages.

The opinion and charge of the presiding judge was incorrect} wherefore, the verdict must be set aside, and a new trial awarded.  