Jackson v. Trullinger

Citations

• 9 Or. 393

Syllabus

<p>Easement — How Acquired.</p> <p>The right to overflow adjoining lands, like the right of way across the lands of another, is an easement, and will pass by a conveyance as an appurtenant, when agreeing in nature and quality with the principal thing granted.</p> <p>Mill Property — Water Power.</p> <p>By the grant of a mill “with the appurtenances,” the dam and all the privileges of flowing which are essential to the enjoyment of the mill and head of water pass, and this is true without the word “ appurtenances,” because the incident goes with the principal thing — a principle said to be especially applicable to water privileges, in grants of mills and factories dependent on a flow of water for motive power.</p> <p>Conveyance by Metes and Bounds.</p> <p>Hence it has often been held that a conveyance by metes and bounds, of a mill-site, carries the right to take and convey and discharge water from and across land not within the boundaries given by the deed, for the reason that the power so to do is necessary to the full enjoyment of the property specifically conveyed.</p> <p>These decisions rest on the principle that the grantor conveys by his deed, as an appurtenance, whatever he has the power to grant which is practically annexed to the granted premises, at the time of the grant, and is necessary to their enjoyment in the condition of the estate at the time.</p> <p>Appurtenances and Incidents.</p> <p>By the conveyance of certain real estate known as the Centreville mill property, by metes and bounds, with the privileges and appurtenances thereto belonging, all privileges of flowing which were necessary to the enjoyment of the mills and head of water, passed as incidents and appurtenances, with the premises conveyed, so far as they legally existed in the grantor at the time of his conveyance.</p> <p>Covenants — Breach of.</p> <p>Nor is this construction of the deed inconsistent with the intention of the parties, as disclosed by the evidence, as it appears that no su