The San Saba news. [volume] (San Saba, Tex.) 1873-1966, 1889-03-01
VOLUME XIV.

the original owner of the land o
both sides Of the creek, from it
source to its mouth. On the lot
day ',f April, 1866, he executed t
Brown deed conveying five hun
bred acres of land, which embrace
all Of the land on the east bank @
the stream, crossing it short dis
tance above its mouth, and inclu
ding small part of the land o.
the west side. This deed, in add
ton to the usual language employ
ed in similar instruments, con
tanned the following cluse:
"And l hereby convey unto salt
J. Fl, Brown, his heirs and assigns
all the rights and privileges o
using the waters of said McAnnel
ly's creek, which l have heretofore
possessed. and which until now
have reserved in all conveyances
of land on said McAnnelly's creek,
for the purpose of erecting machin-
cry up to R. D. McAnnelly's origi-
nal boundary line"
Two conveyances of land had
had been made by McAnnelly,
near the source of the creek, prior
to the deed to Brown. In one of
these, (the conveyance to Williams
in 1861, this reservation is made:
Except the extensive (probably
the word exclusive was intended)
control of the water and the privil-
ege of banking on said land convey
ed in said creek,up to starting point
of said two acre tract of land"
'The extensive control of the
water, must have been right ex-
listing in McAnnelly at the time of
the execution of the deed to Brown,
and which he refers to as thereto
fore possessed, and which until
now l have reserved" etc, and to-
gether with "all the rights and
privileges of using the waters of
said creek" he assigned to Brown.
This would seem to be the obvious
of the language contained
in the clause in the deed to Brown,
when construed in connection with
the exception or reservation in the
prior conveyance to Williams. If,
then, McAnnelly was clothed with
the right to the extensive control
Of the waters of the creek" which
he had reserved in the deed to
IVfIlsen,s 4l.;ea..;;s-l-1 lsl..-s-----.-s
R !, upon the principle that,
all of the rights and privileges
possessed by the grantor at the
time of the conveyance would vest
in his grantee, unless it appears
from the deed that less than these
,rara ;otandad tn he eonvevad II
Is a familiar rule in the construc-
ton of instruments of this charac-
ter, that effect should be given to
every part thereof, if this can be
done. Hancock vs.. Butler, 81 Tex,
SIG.
This principle would be violated,
and the clause quoted granting to
Brown cali the rights and priyil-
eyes of using the waters of the
creek heretofore possessed, and
until now reserved, etc, would be
imperative and without meaning,
if the deed from McAnnelly to
Brown conveys only such riparian
rights to the middle or thread of
the creek, as would be coincident
to the ownership of land on the
bank thereof. Because such ripa-
rian rights would be the legal
effect of and pass by the deed with
out the aid of this clause. There
are cotemporaneous facts in the
case supporting the construction
of the deed: that it operated tc
create an easement in Browns
favor. he purchased the land
with the intention of erecting and
operating q dam across the creek
and to control the water below
and paid an extra consideration
for this purpose
That the language of this clause
as understood ard interpreted by
the grantor in the deed, McAnnel-
ly, conveyed greater riparian
rights and privileges than would
be ordinarily incident to the own.
ership of land on the bank of a
stream, is evidenced by the subse-
quent conduct Of McAnnelly IL
making the reservation in the deco
to Rogan, executed in 1868, anc
by which instrument he conveyed
all of his land remaining on tn,
creek. This tract consisted O
about twelve acres on the ives
bank of the stream. At the tim,
of the execution of this Conveyance,
to Rogan, he mentioned to hin
the reservations" he had made il
the deed to Brown, and then in
serted in the Rogan deed the fol
lowing: