#### Vandenburgh *against*Van Bergen.

gmted'to ??a '^n,aiV“Ke ■ ^it'bThí gfoUM V And afs’o^the ficens'e to^arect ther miii onany •other place', at, «ron, the same liberty of tere'',aHew that *ncetfme,'’Xm*tolm"veerected creek! and *Íó; do^ar^-was Sessaírt tSe cent°ftó’ athe crfifik stod cubeeijuentiy puryet that B. nev*er*having electanouier'mfii^r ta§ftci tod erect luting1 his “f^ eSct baet°aSis Ifehfcoubinst elércu^byhls the! °pr¡vlf|gé ot election ” not being conpled iviti) an interest, st> as to Se^n?*e undlifiáe'd moie"ItreamlifBaíe^' S the gran tee aifer<?iithea injury of others, The" ropertym ¿i stream of Bátor js'indivisi-

THIS was an. action on the case, for overflowing the plaintiff’s land, by means of a mill-dam. erected by the defendant across the': *Coóksackie*-prepi?. The cause was. tried: at the *Green*oil’cuitj’tKe 26t£ of *September,*1815.-

The plaintiff proved that he possessed a farm contiguous to the West bank of the *Cocksackie*'creek, extending’ along the same one '-fourth of a mile, a considerable part of which, adjoin-, , ing the ¿reek, was low land. That, in 1810, the defendant erect-eel, pii his own land, about -three- fourths of a milt below -the. ptelBtjff’§'latad, a saw-'mil| and dam pn the Greek, which he-had ever since kept up; and, that the creek, in consequence, when swelled by rain, overflowed several acres of the plaintiff’s lands

The 'defendant,. *to*show his right to erect, the dam, gave in; evidence, 1. The patent of *Cocksackie,*dated the 23d of *May,*16§7, *,fp. Jphnjtroiick*and *Martin*Garretsé„ which included: the farm and the where the mill-dam was erected 2, A deed, dated the $9th of. *June,*1734, from *John Brouck to*qne ox his sons, *Casparus Brouck,*for certain lands in the *Cock-*. s£fo^epatent, not including the plaintiff’s farm or premises over?t 5- which poptairted the following clause : “ Also, all my &U share, right; and^title of, in, and to a certain saw-mill, atand%g and feeing on the *Cocksackie*kill or creek, in the said county,. with the ground and water stream of thé said creek thereuntq-, belonging; and *full liberty and license to erect and build another mill onany. other place, at,, or on; the same*creek, *with like liberty*, *of ground and stream of water.”*under the last part ot this clause, the detendant -claimed his right or erecting the dam in question.

‘ *Cdspárus Brouck*died, leaving an Only child, a daughter, who mqrfied *Jo‘hri Ft.* Widbéck.*The'defendant further gave in -evidenpp, *Si'A*release from *J.ohh H. Widbeck*an‘d his wife, dated the l'6th’ of *February,*1768,. tó *John V. Douw,*for land in *Cocksackie*patent, with, thé privilege' of erepting.á mill, &c., as. *“• f°ri*er 3éeá, *'4:*Á release *froxa'-Dotm*to *jófoi Ft. Widi beck,*dated the 1-7th of *February,*1768, for the same land, .with ~ - ■ . *°*. ’ ' *?*, the like clause, as to the privilege of erecting a milffdam; 5i-A' *213yelease from *Widbeck*and wife, dated the 14th of *April,*1781, to *Anthony Van Bergen*and *Henry Van Bergen,*which, after reciting the deed *from Brouck*of the 29th *of .June,*1734, released WaÜ.his right, title, interest, claim, and demand whatsoever, of, in, and to a certain fall, situate, lying, and being in a tract of land granted to *Martin Garritse*and *John Brouck,*in a certain creek or kill, known by the name gf the *Cocksackie*kill, and privilege of erecting a mill thereon, with the ground and water stream of the said kill, and, also, an acre of ground adjoining the said fall.” 6. A quit-claim, dated the 8th of *January,*1725, from two Of the sons of *Martin Garritse, to*their brother *Petrus,*for all their right.in the patent, 7. A release, dated the 20th- of *October,*1784, from *Henry*and *Peter Van'Bergen,*two sons of *Petrus Van Bergen,*and *IJarmanus Cuylef, oxuf Elizabeth,*his wife, the daughtér of *Petrus,*to their-brother *-Anthony,*for certain lands,; and, also, of an undivided moiety of the fall, &c., and an acre of land adjoining, described in the deed from *Widbeck*and wife to *Anthony*and ■ *Hemp Van BergenÍ*8. Another deed from *Anthony Van Bergen, Peter Hermanns Cuyler,*and wife, to *Henry Van Bergen,*dated the 20th of *October,*1784, for an undivided moiety of a certain • mill,” &c. “ And, also, an undivided moiety or half part of, and in, one other fall in the *Cocksackie*creek, and of, and in, the one acre of land adjoining to the same fall,: on. the north side of the kill,”- &c. “ And, also, an undivided moiety or half part of any mill or mills, which majnhereáftér be erected within the limits of lot No. 19., on or near the uppermost fall in the kill, nnd of an acre and a. half of. land contiguous to the said mill or mills, with liberty of passing,” &c.

9. The will gf- *Anthony Van Bergen,,*dated *February*10th, 1792, devising to his sgn *Peter,*among other things, “ All thg privilege and other liberties I am lawfully entitled tó, of, and in, the *Cocksackie*mill rights,” &c., in fee. ,

It was admitted-, that *Peter,*the devisee, was dead, and that the defendant was his son and heir at-law.

10. A deed from *Henry: Van Bergen*and wife, to the defendant, dated 8th *December,*1808, for three parcels Of land on the southerly side of *Cocksackie*creek, describing them, “ and-the privilege of the water of the same creek, and the land thereby-covered, arid also the free use of any mill, or mills, which might thereafter be erected,”'&c, -

*214The plaintiff proved an uninterrupted possession of. his farm for. above *60*.years, under *Mantifr Brouck^*daughter of *John Brouck,*one of the patentees. It was also proved', that no dam¿ or mill, had éver been erected on the fall -Where the' dam erected by the-defendant' is built, until the one made by him, ánd'that the saw-mill-,, referred’ to in the different deeds,-was situated lower down the creeks - - -

THe jury found a verdict for thp plaintiff for 1-20 dollar^ damages, subject, by consent, to the opinion of the court, dil the question of the-right of the defendant, tó overflow the land qf the plaintiff. .., „■ . ‘ ■

*Bronk,*fdr the plaintiff,

contended, that the clause'in 'the deed of the 29th.. q£ *July!, 17:34',*¿mounted to ho' moré thaíí a bare license to erect- a mill, and was, in it's'naturer revócabie, ahá had been revoked by the death df the'grantor.

The farm claimed under /, *Brouck,*was sold or disposed of by kin*; for the possession of *M.*Broitcfc'had been ldag enough; to authorize the presumption of ugr¿nt¡ The license, therd*fore; was determined by the sale of - the land.*

Again,' tins rights or license, was ari incorporeal hereditament;† and. no. place was designated by* the. grantor, in which it Was' té be exercised. Unless, then, *Qasparus Brouck,*in his lifetimej elected a-place on which to erect the mill and darn, or to exercise the right, it was for ever at his death.

But, admitting that this privilege could descend, or be transferred with the land, it gave rio right to overflow the plaintiff-’^ land. It is evident, that the grantor' intended that’ *C. Brouck*should elect a place where he might erect a mill, without injury' to others; there were several mill-seats cm the stream ; it could not be intended that he should have the control of the whole, ór might overflow all the adjacent land.

The deed to *II. B.,*of the 20th of *October,*1734, contains several restrictions. The right is limited to" the erection of on© mill, and in a particular place, , :

Again, the defendant derived no title to this fail through *Casparus. Brouck.*A place was selected for a mill, by *Widbeck,*in his lifetime) and the election of the mill-seat being once' made* is final and conclusi ve. \

In *Thompson*v. *Gregory,**‡***the court held, that where a grant of land contained a reservation of a righf-to erect mills bh "thfe/ *215premises, and to overflow as much of the land as might be necessary for the mill; the right, until it was exercised, was to be considered as an *exception,*and void for uncertainty. No esiate in fee, in the mill-seat, was granted, because no place was designated. And, where nothing passes to a grantee before election, there the election must- bp made in the lifetime of the parties.*

Again, admitting the right to have originally existed, yet, a release;, or extinguishment of it is to be presumed from the long and uninterrupted possession, without, any claim or exercise of the right.†

*Van Vechten,*contra,

contended, that the right of erecting a mill, or mills, on the premises, was connected with the freehold granted. The grant operated as well on the mill-seat, or ground on which the mill was to be erected, as on any other part of the premises conveyed. Every grant is to be construed according to the. subject matter and intent of the parties. That is certain, which may be made certain by the election of the party capable of enjoying the right.

But, it is said, that the right of election was lost by the death of the grantee.. But there is a distinction; as where the interest vests immediately by the grant, there the election may be made by the heir or executor of the grantee.!

As to the doctrine of presumptions : The court must look at the right as it is, and the principle on which the doctrine of presumption rests. It is founded on the supposed acquiescence of a. party in the usurpation of -another, for a certain length of time. The possession from "which the presumption arises, is in collision with the right. There must be an acquiescence in acts done in hostility to the. right, to afford the legal presumption of a release or extinguishment of it. Here, nothing of that kind ispretended or shown. The situation of the property, ana the facts, do not afford any such presumption. The court, in *Thompson*v. *Gregory,*did not say, that such a grant would be inoperative and void.

But, it is said, the deed of *Casparus Brouck*gave no right to overflow the adjacent land. Where,, a thing is granted, eyery thing necessary to its enjoyment passes. If the right to erect a.mill could be., of no use without the, privilege, of overflowing-*216the land,'it must be considered that this privilege was intended' to be given.*

*Van Hyclc¡*in reply,

was stopped by the court.

*

 5 Com. Dig. *806.Plead. (3 M.*35.)

†

4 Johns. Rep. 81.

‡

*4 Johns. Rep. 81.*

*

*Co. Litt. 145. a. Hob.*174. *Dyer,*281. Vin. Abr Elect. (A) pl.1.

†

*7 Johns. Rep.*556. 10 *Johns. Rep.*301. 377.

‡

*Co.*Litt. 145. a. Com. Dig. Elect. (B.)

*

*Shep. Touch, c. 5.*s. 1, *2,*p. 89, 90, 91. *notes*1, 2, 3, 4.

Pi/att, J.

delivered the opinion of the court. This is ári action oil the case for overflowing the plaintiff’s land, by means óf a mill-dám erected by the defendant on the *Cocksackie*creek.

The defendant claims A right to maintain the dam, and tó dd the acts teomplained of, partly under a conveyance, in fee simple; from *-John Brouck*(one of the patentees) to *Caspdru'c Brouck,*dated the 29 th of *June,*1734, for an undivided moiety; and partly under á conveyance, in fee simple, from *Henry Van Bergen*and others to *Anthony Van Bergen,*dated the 20lh of *October,*1784, for the other undivided moiety,

The first deed conveys a saw-mill on the *Cocksackié*creek, ■ with the ground and water stream thereto belonging,” “ *and full liberty and license to erect and build another mill on any other place at, or on,, the same creek, with like liberty of ground and stream ofwaterM*The latter of said deeds conveys (referring to another deed)' “ an.undivided moiety of, in, and to, a certain fall, situate, lying, and being in a tract of land granted to *Martin. Garritse*and *John-Brouck,*in a certain creek or kill, known by the name of the *Cocksackie kill,-and privilege of'erecting a mill thereonwith the■ ground and water stream of the said kill; and, also, one acre of ground adjoining sáid fallM*'

The defendant deduces all the interest and estate granted by" the said' deeds, by a chain of conveyances down to himself; and. it appears that about 4 or 5 years ago he erepted the mill-dam, nów complained of, upon his own land, at a fall On said creek Vrhere no mill or dam had ever before been built.

The plaintiff proves a continued and uninterrupted possession of his farm for the last GO years, derived from *Mantis Brouck,*a daughter of the patentee.

I am of opinion that the defendant has failed in Bis attempt to show a right to overflow the plaintiff’s land.

The deed from the *Van Bergens*(dated the 20th of *October,*1784,) for their moiety, does not, in the terms of' it, profess to-grant any privilege in the water *beyond the limits*of the mill-site, or falls, intended to be conveyed by that deed. The right of building a dam at that place must be exercisedm such a man» *217ñer as riot to injure the previous rights of other persons. Besides, the grant of ah *undivided share*in a stream of watgf would riot authorize the grantee to appropriate or modify tfie stream to the injury of others, who have a joint interest in it. The property in a stream of water is *indivisible.*The joint proprietors must Use it as an entire stream, in its natural channel. A severance would destroy the rights of all.

As to the right claimed under the deed to *Casparus*Broubk, in 1734, it was a.“ liberty and license” to-erect a mill on any part of the creek, and.to Use and convert the stream of writer in a reasonable manner for that purpose; and it does not appear that the present dam is unreasonably high, or unusually con* structed.

*Casparus Brouck*himself would, undoubtedly, have had a right to do the very act now complained/of, against any person claiming title under a subsequent conveyance from *John*Brouck, The question, therefore, is, whether the privilege granted, or the license given, by the deed'to *Casparus*Brouck, has expired os been extinguished.. According to *Co. Litt.*145. A., and *Vin.*tit. Election, *(Com. Dig.*tit. *Election,)*“ where an interest vests immediately by the grant, election may be made by the heirs,’’ &c. So, “ where an election is coupled with an interest, such election is descendible.’’ But, “ if nothing passed or vested in the grantee before his election, it ought to be made in the life of the parties.” “ When *election*creates the interest, nothing passes till election.’’ “ A feoffment of a house and 17 rieres of land, parcel of a waste, the *feoffee,*and not his heirs, must elect,, or else the 'grant is void..’’

Tested by these rules, I am clearly of opinion, that the grant or license to build a mill anywhere on the *Cocksackit*Creek, with the land and water necessary for that object, vested no interest or estate absolutely in the grantee, at the time of executing the deed. The right was *potential*merely; it could', vest only upon the location and election to be made’by the-grantee. It appears there Were, at least, four mill-sites on that creek. It is certain that *Casparus Brouck,*in his lifetime, was not actually vested with the title to any'particular mill-site, by. Virtue of that general grant. His election and location was necessary to consummate the title'. He never exercised his right , and by his death it became extinct.

*218*The-election,*in this case, was not “ coupled with an interest,” jn ¿jjg sense of Lord *Coke.*He *means-an-election*coupled with an *interest which vests absolutely at the time of the grant. ,As*if there had been a grant of a definite mill-site coupled with the privilege of'-flowing. Then the.interest in the. principal subject of the grant Would have vested immediately; and the. appurtenant-right of flowing would have followed it to the heir, who might' elect to exercise the privilege of . flowing whenever he' pleased* The plaintiff is entitled to judgment. ' ,

Judgment for the plaintiff.