SARAH B. OWEN vs. DAVID D. FIELD.

AMES, J. The rights of these parties depend mainly upon a large number of deeds, some of which are not drawn up with much professional skill and precision; and some present questions of construction of considerable importance and difficulty.

Of these deeds, the earliest in date, and perhaps the first in importance, is the indenture of June 5, 1830, between Joseph E. Woodbridge of the first part, and Isaac Kellogg, George C. Kellogg, Thomas Dyer and Harvey Case, of the second part. Said Woodbridge was at that time the owner of the dwelling-house and homestead lot now belonging to the defendant or his family; also of another lot and dwelling-house on the opposite side of the road known as the Stockbridge and Lee turnpike; and of the Hull lot, as it has since been called, upon which the four springs in controversy are situated, and which now also belongs to the defendant. Whether he is the owner of this last mentioned lot, in such a manner and by so full a title as to make him also owner of the springs, with full power to control and appropriate the water furnished by them, is one of the matters most seriously controverted in the case. This indenture, after reciting that "the parties of the second part have it in contemplation" to conduct the water from the springs by an aqueduct to the village of Stockbridge, sets forth that "to facilitate said undertaking," and in consideration of sixty dollars, and of the

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covenants and agreements of the parties of the second part therein mentioned, said Woodbridge, "for himself, his heirs and assigns, lets, leases, grants, sells and conveys to the parties of the second part and to their heirs and assigns forever, the whole use of said four springs" with the right of laying an aqueduct, "for the purpose aforesaid," and constructing reservoirs, and also of entering upon the land, at all reasonable times, for the purpose of construction and repairs, doing no unnecessary damage. The other parties covenant to furnish to him, his heirs and assigns, a reasonable supply of water at both his houses and at his barn, by means of an aqueduct and good leaden pipes, by the first day of December of that year, to be continued forever thereafter, (unless there should be a failure of water at the springs, or of the main pipe leading from them to the north side of the river,) the pipes to be kept in repair by said Woodbridge, his heirs, &c. Then follows a clause, the construction of which has become a matter of importance, and which is expressed in these words: "And if by any reason the water should not be delivered in the main pipe, on the north side of the river, for the space of one whole year at one time, this indenture is to cease and be thereafter void and of no effect, the parties of the second part, their heirs and assigns, retaining the right in that case to take away their pipes, they filling up the trenches and doing no unnecessary damage."

The master's report finds that, under this indenture, Isaac Kellogg and his associates constructed the aqueduct, supplying the village with water to some extent, and also supplying Woodbridge's houses according to the terms of their covenant. He reports also that, although the matter was controverted at the hearing, it was not proved that it supplied either of Woodbridge's houses after 1840, and that there was no evidence that it ran to any other place in the village after that year. The grantees made no repairs upon it after 1839; and after several unsuccessful attempts to dispose of their interest in the property, they finally in the year 1851 took up and removed the pipes, and have never since exercised or claimed any right in the premises. It does not appear that they have ever been called upon since

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that time to fulfil any obligation on their part expressed in the indenture.

The defendant insists that the grant contained in the indenture is not a grant of a mere easement, or incorporeal right, but a grant of land in fee, defeasible on breach of a condition subsequent, conveying land itself, and not a mere privilege, or right of use, in the land of the grantor. By the terms of the instrument, Woodbridge "grants, sells and conveys to the parties of the second part, and to their heirs and assigns forever, the whole use of the four springs," with the incidental right of laying down an aqueduct across and through the adjacent land, and of entering for the purpose of construction and repairs. Woodbridge, by the terms of his contract, appears to have cut off himself and his heirs forever (if the indenture should continue in force) from all personal control over the waters of the springs. He makes no technical reservation or exception in his grant; and it may perhaps be contended that, for his supply of water from that source, he leaves himself wholly dependent on the covenant of the other parties, that they will deliver it in reasonable quantity, by means of pipes, &c., on his grounds. The defendant contends that a grant of the exclusive use or control of the four springs forever is in its legal effect precisely equivalent to a grant of the springs themselves, and that it is a well established rule that, in a grant or reservation, the use of a general descriptive term, applicable only to the purpose for which the land is used at the time of the grant, is sufficient to pass the land in fee, so far at least as may be necessary to the enjoyment of, or commonly used with, the thing expressly granted. Thus the grant or reservation of a mill has been decided to include not only the mill itself, but the land under it and so much of the land adjacent to it, as is necessary to its use, or commonly used in connection with it. Forbush v. Lombard, 13 Met. 109. A grant of a well has been held to pass a fee in the land occupied by the well. Johnson v. Rayner, 6 Gray 107. A grant of a "town pound" includes the land on which the pound is situated. Wooley v Groton, 2 Cush. 305. A mortgage of the stone foundation of an unfinished house has received the same interpretation. Greenwood v. Murdock, 9 Gray 20.

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If the defendant's construction of the grant must be taken as true, it would follow that a deed of warranty, by which Woodbridge should afterwards undertake to convey in fee, to some third person, the lot of land in which the springs are situated, would, so far as the springs are concerned, be an attempt to grant a fee upon a fee, and would therefore, to that extent, pass no title and be of no avail. 2 Washb. Real Prop. 225.

But on full consideration we cannot adopt the defendant's construction of the indenture. The terms of the grant are appropriate to the purpose of giving to one party a right to be exercised in the land of another, and do not necessarily imply a conveyance of the soil in fee. Arnold v. Stevens, 24 Pick. 106. Co. Lit. 4 b. The effect of it is to subject Woodbridge's tenement, or lot of land, described in the case as the Hull lot, to the burden of a restriction from doing upon it what he otherwise could do, and an obligation to suffer others to use it in a manner which he might otherwise prevent. This court has defined an easement or servitude to be "a right which one proprietor has to some profit, benefit or lawful use, out of or over the estate of another proprietor." Ritger v. Parker, 8 Cush. 145. Woodbridge, the proprietor of the land, conveys to the parties of the second part, the proprietors or intended proprietors of aqueduct works, a right which was supposed to be valuable, and was intended to be permanent. It was a benefit or use to one party in the land of another, and falls literally and exactly within the established definition of an easement. The indenture does not in terms purport to convey the springs themselves, but the use of them; and the whole indenture taken together describes the purpose and the manner of the use. It is a grant of the whole use of the springs forever, but for the purpose of supplying the village with water, and the mode of exercising that use is by conducting the water from the springs to the village by means of pipes. It recites that the parties of the second part have it in contemplation to conduct the water from the springs, by an aqueduct, to the village, and in order "to facilitate said undertaking" he grants, &c., the whole use of the springs, and the right and privilege of laying an aqueduct in the usual manner,

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"for the purpose aforesaid," across his lands. There is nothing to indicate that there was to be any other use by the grantees, or any use of the water at the springs. Undoubtedly the grant would give them so much right and interest in the soil as was reasonably necessary to the beneficial enjoyment of that grant. They apparently have no more reason for saying that the fee simple of the soil, under and around the springs, is vested in them, than they would have for saying that the soil, under and inclosing their pipes and reservoirs, is vested in them, by the terms of the indenture. "The use of the springs," taken in connection with the rest of the instrument, can only mean the right to appropriate the water, wholly or in part, by conducting it by means of an aqueduct to the places where it is to be distributed. It is to be remembered that running water is not of itself the subject of a grant. The case differs very widely from those above cited of the grant of a mill, or a well. There can be no exclusive enjoyment of a mill, or a well, or any other permanent and irremovable fixture so attached to the soil as to be a part of the realty, without the exclusive control of the soil on which it stands, and therefore the law implies that so much of the soil is included in the grant as may be necessary to its existence, or beneficial enjoyment. But the necessity is the measure and limit of the implication. Here there is no such necessity, inasmuch as the use of the springs does not require, or as a matter of course include, the fee in the soil.

Moreover the parties have expressly provided by their contract, that, upon the happening of a certain contingency, the indenture is to cease, and be thereafter void and of no effect. If these words were contained in a deed poll, they might create a condition subsequent, on the breach of which the grantor might enter and repossess himself as of his former estate. But this instrument is an indenture, containing mutual stipulations. The parties of the second part not only receive a grant, but they enter into covenants and assume obligations. The condition is not merely for the protection of the grantor, but it also operates for the relief of the grantees. The contract does not provide

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merely for the failure of the source of supply, or the breaking down of any of the pipes or fixtures. On the contrary the provision is that "if by any reason the water should not be delivered in the main pipe, on the north side of the river, for the space of one whole year at one time, this indenture is to cease," &c. It seems to us that the obvious intention of this clause in the indenture is to provide for the contingency (which has in fact occurred) that the enterprise might prove unsuccessful or burdensome to the grantees; that it allows them to relieve themselves from their obligations and covenants by a voluntary and intentional surrender of the right conveyed to them, and that they are at liberty in that event to remove so much of their investment in the undertaking as admits of removal. The event on which the indenture was to cease, and thereafter to be void and of no effect, was entirely in their control. They were at liberty to dig up their pipes and abandon the enterprise, whenever they found it for their interest to do so. The effect of the indenture seems to be that it gave a license or authority to the parties of the second part, to be exercised as long as they should see fit; or more properly, that it granted to them an easement, and imposed upon them certain obligations, terminable, at the pleasure of the grantees, by a nonuser kept up continuously for the term of one year. The last clause of the indenture should be construed, not as a condition subsequent, but as a limitation. The difference is quite material. "A limitation doth always determine the estate without entry or claim, and so doth not a condition." Also "a stranger may take advantage of an estate determined by limitation, and so he cannot upon a condition." Shep. Touch. 121. "The apt and proper words to make a limitation of an estate are quamdiu, dum," &c.; and in this case the word "if," although used in the grant, is not sufficient of itself to render it a grant defeasible on condition subsequent. The substance of the clause is not the forfeiture of a right, but the termination of an onerous and unprofitable obligation.

If we are right in viewing the contract as the grant of an easement in the strict sense of the term, (and of this we think there can be no doubt) it would follow that, on the extinguishment

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of the easement, or its termination by the limitation provided for in the deed, the use and control of the springs would go back to the owner of the soil in which they were situated, and his title, and that of all claiming under him, would be exactly the same as if the easement had never been granted. It is difficult to see how there could be a more manifest and unequivocal abandonment of an easement of this kind, than is found in the fact that the grantees not only ceased for years together to make use of it, but at last dug up and carried away all the pipes and fixtures necessary to its use, leaving the springs, and the land on which they were situated, as nearly as possible in their original condition.

If then the indenture is to be considered as containing a grant by Woodbridge of an easement in the Hull lot, terminable on a certain agreed limitation, and not a defeasible or conditional fee in any of the land itself, it would follow that he continued to be the general owner of the lot, including the springs, subject only to the right or easement which he had granted. He then proceeds, by his deed of warranty, dated October 25, 1832, to convey the Hull lot to Edward Burrall. The deed contains what it describes as a reservation of all the rights and privileges which he had previously conveyed to the Kelloggs, Dyer and Case. But this so called reservation, as both parties agree, is not properly so called. It is an exception, and not a reservation. The grantor conveys all the title that it was in his power to convey; he reserves nothing whatever to himself. Its whole meaning is, that he does not undertake to convey to Burrall the rights in the springs which he had previously conveyed to another party; and the effect of the deed is to make Burrall the general owner of the lot, subject to the easement.

The next step in the history of the title to the springs is a warranty deed from Burrall to David C. Hull, dated February 9, 1846, conveying the Hull lot, with however an important exception or reservation, the true interpretation of which has been a matter of no little controversy. It is to the effect that Burral reserves to himself, his heirs, &c., the water of four springs, being the same springs conveyed by Joseph E. Woodbridge to the

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Kelloggs, Dyer and Case, as per their contract dated June 5, 1830, together with the aqueduct pipe now in the ground, with all fixtures, &c., and all the privileges named in said agreement, conveyed by said agreement. The defendant insists that this clause, although the grantor uses the expression "reserving to himself," cannot be considered as really a reservation. He insists that it is merely the excepting, out of the deed from him, of the same things that were excepted out of the deed to him; that the things described in this clause were things that he could neither grant to any one else, nor reserve to himself, for the reason that they belonged, not to him, but to the Kelloggs, Dyer and Case, and that this clause in the deed is to be construed as an exception, and not as a reservation. But, in the construction of the deed as a whole, the circumstances under which it was made are to be considered. It is found as a fact by the master that the Kelloggs and their associates had made no repairs on the aqueduct for about six years; and it is apparent from his report that the enterprise of supplying the village with water was not in a promising condition, and possibly that the contingency upon which the indenture was to cease and become void had already occurred. It is at least possible that Burrall may have anticipated its early discontinuance, and it may well be inferred, from what appears on the face of the deed itself, that he was not ignorant of the terms of the indenture of June 5, 1830. But however that may be, a clause follows that already commented upon, which certainly must operate as a reservation, and take effect as such, upon the final abandonment of the easement in 1851. "The said Burrall also reserves the right of laying down other pipe and taking the waters of said springs, and repairing any aqueduct that said Burrall or his heirs," &c., "may see fit to lay down and use as per the conditions relating to the present pipe and fixtures." We think this reference to "the conditions relating to the present pipe and fixtures" is to be understood as meaning that he reserves to himself the right to control the water of the springs, and to convey it from the lot of land in question, in the same manner as is provided for in the indenture so often referred to. The effect of this deed then would

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be, that David C. Hull became the owner of the lot in fee, but without the right to control the water of the springs; and the abandonment of the easement by the Kelloggs and their associates in 1851, if not at an earlier date, would vest the same ease ment in the hands of Burrall, by virtue of the reservation contained in his deed to Hull. According to the decision of this court in the recent case of Goodrich v. Burbank, 12 Allen 459, this would be a right in gross, transferable and descendible, not necessarily annexed to any particular estate, or limited as to the place or manner of its enjoyment. The title which the plaintiff has derived from Burrall, through Stanton, her grantor, is quite enough to give her a right to conduct water from the springs to her dwelling-house, provided she has obtained such a control of the intermediate lands that she can lay down her aqueduct pipes for that purpose. On the other hand, it is very manifest that the deeds, by which the defendant became the owner of all that the heirs of David C. Hull could convey to him in the Hull lot, would not convey to him any title to a control over the waters of the spring. Hull had no such title himself, and of course could convey none; and his heirs, in their deeds to the defendant, do not undertake to convey such right, or to warrant against any right in the springs on the part of Burrall or persons claiming under him by virtue of the reservation in his deed to David C. Hull. It will be observed also that by the reservations or exceptions (whichever they may be called) contained in Burrall's deed of April 1, 1847, to Isaac Brown, he kept in his own hands a right of way for an aqueduct through the "Brown lot" and the "Brown lane," from the springs as far as the turnpike. The fact that he had substantially parted with all his lands in Stockbridge before he quitclaimed his rights in the springs to Stanton, in the light of the decision in Goodrich v. Burbank, ubi supra, may well be considered immaterial.

In the former suit between these parties, reported in 12 Allen 457, the plaintiff failed to obtain the relief prayed for, on the ground that "she had failed to show that, even if she were permitted by the defendant to exercise the right which she claims, without obstruction, she has any such right to continue the

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aqueduct to her own land, as would enable her to bring the water to her house, or give her any beneficial enjoyment of it." In this respect, however, the plaintiff, since that trial, has materially strengthened her position. She now has laid down her aqueduct within the limits of the Hull lot, and, passing under the track of the Stockbridge and Pittsfield Railroad Company, to the Housatonic River. As her title under Burrall's reservation is older and better in that respect than any title which Hull could convey to that corporation, she so far does not go beyond her legal rights. It may be proper also to say that in so doing she does no injury to the track of the railroad, and is not met by any objection on the part of its proprietors or managers. This right, as derived from Burrall, would carry her as far as his line would extend in that direction, that is to say, to the thread of the river, at which point she comes to the boundary of her own land, namely, the lot recently purchased of Lawless. She then continues the line through that lot, and through another lot of land of which she is also the owner, called the Thompson lot, to the Stockbridge and Lee highway, formerly a turnpike. The line is then still further continued in like manner under this. highway, passing through another lot belonging to her, and described in the report of the master as the "triangle," and then under another highway, till it reaches her dwelling-house. The plaintiff has title in the soil under the second highway by distinct grant thereof, and under the southern half of the first highway by virtue of the deed to her bounding the lot of land on that side "on the road." It does not clearly appear in whom is the title of the soil under the northern half of this road. With this exception, the plaintiff has acquired such a control over the land intermediate between the Hull lot and her own dwelling house, that she can lay down a continuous line of aqueduct the whole way without trespassing upon the land of any other owner, or needing the permission of anybody. And if a portion of the aqueduct has been laid, either by sufferance or by trespass, across a highway passing over land of which the fee belongs to some other person, the defendant has no right to interrupt it, or to complain of such a trespass. Within the limits of the Hull lot,

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the plaintiff was entitled, under the reservation in Burrall's deed so often referred to, to lay down any aqueduct that she might reasonably see fit, in order to avail herself of her rights. The fact that she has very recently purchased a portion of the land necessary to the continuity of her line of aqueduct, and that she did so in order to remove the difficulty under which she labored in her former suit, and with a view to renewed litigation with the defendant, in our opinion does not interfere with or impair her claim to relief, as prayed for in the present bill. If she has the rights in the use of the springs which she claims, the defendant has no cause to complain that she has acquired, by purchase, such control over the intermediate lands as she finds necessary to the beneficial enjoyment or successful assertion of those rights.

Among the deeds, the construction of which has become matter of controversy, is one from Joseph E. Woodbridge to Caleb Hyde, dated February 20, 1833, conveying to said Hyde the estate and homestead now in the ownership and occupation of the defendant or his family. This deed, which contains the usual covenants of a warranty deed, purports to convey to Hyde, with the house and land, all the rights and privileges which said Woodbridge was entitled to under and by virtue of the indenture with the Kelloggs and their associates, already referred to, and the right of enforcing all the covenants and agreements contained in that indenture and obligatory on the parties thereto of the second part, "relating to the delivering of the said water to the two places" named in the indenture, "as fully as" said Woodbridge "now possesses the same." The deed also recites that the conveyance to Hyde is subject to all the rights and privileges granted by the indenture to the Kelloggs and their associates, and that Hyde is to allow, do and perform all that Woodbridge was bound by the indenture to allow, do and perform in relation to the aqueduct, and to the support of the aqueduct. The defendant claims that, having acquired all the title which Hyde had and enjoyed by that deed, he has acquired, as one of the appurtenances of the estate, the right to appropriate to that estate the use and control of the waters of the springs. But, by his deed to Hyde, Woodbridge only undertook to convey, with

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the land, the rights and privileges belonging to him under the indenture, and the right of enforcing the covenants in his favor obligatory upon the Kelloggs and their associates. Upon the termination of their estate in the right to the use of the springs, by the happening of the event upon which, by express previous agreement and limitation, the indenture was "to cease, and be thereafter void and of no effect," and they were to be at liberty to remove their fixtures and apparatus, all the rights and covenants dependent upon their estate, and all the privileges of Woodbridge and those claiming under him, under and by virtue of the indenture, must also cease. The indenture being terminable by its own limitation, all rights, privileges and benefits in favor of other persons, and dependent upon it, must be terminable in like manner and upon the same limitation. For that reason it is difficult to see how the privileges under the indenture conveyed by Woodbridge to Hyde can be of any practical advantage to the defendant, for the purposes of the present case.

The deed from Burrall to Byington, dated March 25, 1845, appears to have no particular bearing upon the case at bar. Burrall was at that time the owner of the dwelling-house and homestead now belonging to the plaintiff, and the deed to Byington only shows that those parties at that time intended to rely upon an entirely different source for their supply of water. We find nothing in that deed to affect the plaintiff's claim, or to prevent her from looking to a new source of supply after wards, if she chose to do so.

We have no doubt that this case falls within the equity power of the court, and presents a proper occasion for the exercise of that power. The defendant not merely obstructs the plaintiff's aqueduct, and so interrupts its use for the time being, (for if that were all, such damages as she might recover in an action at law might be a sufficient and adequate indemnity,) but he wholly denies her right, has taken up her aqueduct, forbidden her to interfere with the water of the springs, and intends entirely to cut off the communication between her dwelling- house and them. She has made out a full right to the use of the water, and has also satisfied us that she has no adequate and complete

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remedy at common law. The right under which she claims is not one of recent origin, but dates back certainly as far as March 1853. It is true that she has been under the necessity of changing a portion of her aqueduct, and diverging for a considerable part of the entire course from the line originally laid down by her immediate grantor, Stanton, but the termini of the line and the right under which she has claimed have always been the same that they are now. It is true, also, that during part of the time since her title accrued she has enjoyed the use of the right in common with the defendant, and in crossing his land has done so by his permission, "neither party waiving their legal rights in the premises." It is apparently, then, a case of established enjoyment for years together, under a claim of right on her part, and a violent interruption of that enjoyment by the defendant; and she is in our judgment entitled to relief in equity as prayed for.

It will be seen that we have attached no particular importance to the quitclaim deed from Woodbridge to the plaintiff, dated September 25, 1865, as it is very doubtful, to say the least, whether he at that time had any title in the springs which he could convey by that deed.

In conclusion, we feel bound to say that we have been greatly assisted in our examination of the case by the very full, elaborate and careful report of the master, and that we see no cause for reversing or qualifying any of his decisions.

Decree accordingly.

The draft of the decree drawn up after the delivery of this opinion provided, among other things, first, that the defendant be enjoined and restrained from removing the aqueduct or intermeddling therewith; and secondly, that the plaintiff might "conduct, have and receive, use and enjoy the waters of the said springs." The defendant desired to alter the draft by adding to the first above mentioned provision the words "so long as the plaintiff fulfils the conditions mentioned in" the deed from Burrall to Hull of February 9, 1846; and by striking from the second above mentioned provision the word "said," and by

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adding to said provision the words "used and enjoyed by the plaintiff's predecessor, Stanton," so that said provision might read that the plaintiff might "conduct, have and receive, use and enjoy the waters of the springs used and enjoyed by the plaintiff's predecessor, Stanton."

On the points raised by these proposed alterations, a further argument was had in writing.

I. Sumner & M. Wilcox, (H. L. Dawes with them,) for the plaintiff.

H. Morris & A. J. Waterman, (H. J. Dunham with them,) for the defendant, contended that the plaintiff was entitled to use only the two springs used by Stanton; that she could use the springs only under the conditions set forth in the indenture be tween Woodbridge and Isaac Kellogg and others; and, if the point was open to them on this hearing, that the clause at the end of the said indenture, concerning the ceasing of the water for a year, was a condition, and not a limitation.

AMES, J. Upon the attempt to draw up the final decree in this case, it was suggested that there were a few points which seemed to have been left by the judgment not entirely free from controversy, and it has been thought expedient, as to those points, to hear further argument from counsel.

It appears from the master's report that the aqueduct, as used by Stanton, conducted water from two springs only; and that the plaintiff, since the dispute between these parties began, has taken the water of two other springs into her aqueduct. The defendant now objects that it does not appear that these two springs last mentioned were among the four that are referred to in her title deeds. But the four springs are described with much precision in the Kellogg indenture, and the same description appears to have been adopted, by reference to that indenture, in all the subsequent deeds. The master's report certainly implies that the four springs which the plaintiff claims are the same four that are referred to in the entire chain of conveyance. No question as to their identity appears to have been raised at any previous stage of the case. In the absence of all evidence of any practical uncertainty upon the subject, and of all reason to infer

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from the report that there are more than four springs upon the lot, we must assume that her possession, taken under a deed containing a definite and clear description, is in accordance with her deed.

As to the alleged forfeiture of her right to make use of the two springs recently taken into the aqueduct, it is to be remembered that she claims by deed, and for that reason mere nonuser would be of no avail to impair or defeat her right. The nonuser, to have that effect, must be in consequence of something which is adverse to the user. Nothing short of adverse use, on the part of the owner of the servient estate, inconsistent with and preventing the use of the easement, can destroy the easement. According to the authorities, the interruption of the easement, by adverse use on the part of some person adversely in terested, must be continued for at least twenty years in order to destroy the easement. Smyles v. Hastings, 22 N. Y. 217. Arnold v. Stevens, 24 Pick. 106. Washburn on Easements, 551, 556, and cases there collected. In this case there has been no inconsistent or adverse use by the defendant and those from whom he derives his title; and the very title deed under which he holds the Hull lot, in express terms, reserves and excepts out of the grant the rights of Burrall, in the springs, as reserved in the deed from Burrall to Hull.

The defendant also insists that the plaintiff's right in the springs is subject to the conditions described in the Kellogg in denture. In the deed from Burrall to Hull, the grantor reserved to himself and his heirs, &c., in very general and comprehensive terms, the entire control of the water of the springs. It is true that in so doing he uses the expression "as per the conditions relating to the present pipe and fixtures." But, at the date of that deed, neither of the parties to it had any interest in, or were under any obligation towards, the owner of the homestead which has since been conveyed to the defendant or his family. Woodbridge had conveyed it to Hyde, and Hyde had no rights in the springs except such as were reserved to Woodbridge under that indenture. Upon the termination of the easement created by that indenture, the lessees under it had the right to remove all

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their fixtures, the indenture was "to cease and be thereafter void and of no effect," and the right in the springs then stood exactly as if no such indenture had ever been made. They came under the full control of Burrall, according to the reservation in his deed. He was under no obligation or necessity to impose upon their use any condition for the benefit of a mere stranger to the title, and we can give no other construction to the phrase "as per the conditions relating to the present pipe and fixtures," than to say that it was descriptive of the mode of use, and the general manner of conducting away the water, doing no unnecessary damage, &c. It certainly cannot operate as a grant to a third person.

Whatever rights the plaintiff can lawfully claim in the four springs, she holds by a single and indivisible title, not dependent on continuous user, but upon a series of formal and regular grants from successive owners. It can hardly be said, merely because her predecessor had never exercised the whole of his right, and she also had not done so until quite recently, that her title had not been put in use, and that therefore her remedy in equity must be confined to the two springs first connected with the aqueduct. It is enough that she has made out a case of long continued enjoyment under a clear title; that, although she has not used her whole right, she has never abandoned any part of it; and that the defendant's denial of her right and his opposition to its exercise have extended to her whole title.

We did not intend, in this additional hearing, to reopen the controversy between the parties, or to intimate any uncertainty in our own minds as to the general character of the decision already given. On the contrary, we have desired to confine ourselves strictly to the objections taken by the defendant to the decree originally prepared. And as to those objections, we do not see on what ground they can be sustained.

Final decree for the plaintiff.