PURTENANT.

The word "appurtenant" means attached purtenance" usually means something apperto, or belonging to, and in law the term "aptaining to another thing as principal, and passing as an incident to such principal. Dig. § 336; Dec. Dig. § 117.* [Ed. Note. For other cases, see Deeds, Cent.

under this section, the court of probate of 2. DEEDS (§ 117*)-ESTATE CONVEYED—“APStamford could under the circumstances have finally adjudicated the question of whether under the will of Mary F. Jones and the decrees of the Supreme Court of New York the defendant Downs held the fund in question under his Connecticut appointment or under that of the Supreme Court of New York, it did not do so by merely approving the account presented by Downs in which he did not charge himself with the item of $5,500. The question presented in the present case was neither raised nor decided by the court of probate, and its action in accepting Downs' account is not a bar to this action. Prindle v. Holcomb, 45 Conn. 111, 113; Lawrence v. Security Co., 56 Conn. 423, 428, 15 Atl. 406, 1 L. R. A. 342.

We are not prepared to sanction the ruling of the trial court in excluding Exhibit 1, because opposing counsel conceded Downs' appointment as ancillary trustee. Such admission did not deprive the defendant of the right to prove, by the decree of the court, that fact which was material to the inquiry before the court. But as the court has found that he was so appointed, and as paragraph 7 of the second defense, which was admitted by the demurrer, states the substance of the decree, we do not see upon an examination of Exhibit 1, which is a part of the record be fore us, how the defendant could have been injured by its exclusion.

There was no harmful error in excluding Exhibit 3. The finding of facts correctly states the substance of the order of the court of probate of Stamford. The copy of the record offered neither proves nor tends to prove that Downs has ever accounted or been excused from accounting for the money in question.

Exhibit 8 was rightly excluded. It contains no stipulation of William P. Jones that Downs should account for this money in the New York court, even if such a stipulation could have affected this plaintiff.

Exhibits 5 and 6 were properly rejected. They do not contain admissions by plaintiff's attorney to defendant's attorney that an accounting regarding these funds must be had in New York, even if his opinion to that effect would have been admissible as evidence. There is no error. The other Judges concurred.

(82 Conn. 95)

WHITTLESEY v. PORTER. (Supreme Court of Errors of Connecticut. April 15, 1909.)

vol. 1, pp. 477-487; vol. 8, p. 7580.]
For other definitions, see Words and Phrases,
3. WATERS ANd Water Courses (§ 154*)—Ap-
PURTENANCE-HOW CREATED.

An incorporeal right, such as a water privilege not before attached to land, may be made it is to be used in connection therewith, and an appurtenant to it by a separate grant when when such is the intent of the parties.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 154.*]

4. WATERS AND WATER COURSES (§ 154*)LEASE-ESTATE CREATED "APPURTENANT.'

years of the right "to draw and receive from
A lease from a water company for 999
the canal and use in and upon the water lot
or land" described, which was then owned by
ated for 50 years by water from such canal,
the lessee, and on which a mill had been oper-
causes such water privilege granted to become
an "appurtenant" to the land and mill prop-
erty of the lessee.

Water Courses, Dec. Dig. § 154.*]
[Ed. Note.-For other cases, see Waters and

5. MORTGAGES (§ 594*)—SALE—WHO MAY RE-
DEEM-ASSIGNEE OF WATER PRIVILEGE.

An attempted assignment of water privilege which was not severable from the land and mill property to which it was connected passes no interest in the land, and the assignee is not entitled foreclosure. to redeem the land from mortgage

[Ed. Note.-For other cases, see Mortgages, Dec. Dig. § 594.*]

County; Howard J. Curtis, Judge.
Appeal from Superior Court, Hartford

John G. Porter to remove a cloud from title.
Action by Laura V. Whittlesey against
From a judgment for defendant, plaintiff ap-
peals. Reversed.

On the 2d of July, 1900, Frank H. Whittlesey, the plaintiff's husband, was the owner of property in Windsor Locks consisting of a tract of land lying between the west bank of the Connecticut river and the canal of the Connecticut River Company, and buildings and machinery thereon, and a water privilege. The finding contains copies of three title deeds of said property to Frank H. Whittlesey executed and recorded, respectively, in 1876, 1877, and 1900. The water privilege is described in said deeds as follows: In the first, "certain buildings, water privilege and land connected therewith including the lease of water from the Connecticut River Company connected with said property"; in the second, "togeth

*

*

1. WATFRS AND WATER COURSES (§ 154*)-er with a certain lease of water from the ESTATE CONVEYED AS APPURTENANT-WATER PRIVILEGE. Connecticut River Company. Also water wheels * * and the water privilege connected therewith"; and in the third, "Also all the right, title and interest we have in and to a certain lease from the Connecticut River Company * * * dated January 3,

A water privilege, which is so connected to land as to constitute an appurtenance, passes by a conveyance of the land, though it is not expressly named in the deed.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 154.*]

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

with the appurtenances thereof unto him the said grantee and his heirs and assigns forever." On the same day (October 4, 1905) Morley conveyed the land and water privilege so conveyed to him by Whittlesey to the Whittlesey Paper Company, for the stated consideration of $1, subject to said mortgage to Coffin of $15,000, and the mortgage to Whittlesey of $75,000, both of which the grantee assumed as part consideration for the deed.

1846, and recorded in the Land Records | power turbine and case, and numerous othalso all right to the use of water er implements and articles of machinery, appurtenant to said land granted in said etc.] and all the machinery, engines and imlease." plements situated and used in the manufacOn said 2d of July, 1900, while Whittlesey turing establishment this day conveyed." still owned said property, the Connecticut The habendum was "to have and to hold River Company executed to him and his the above granted and bargained premises heirs and assigns a lease, for the term of 999 years, at a rental of $775, payable semiannually, of a water privilege described in the lease as "a water privilege situated in the town of Windsor Locks * * * between the canal made by said first party and the western bank or shore of the Connecticut river. The water privilege aforesaid shall consist in the right to draw or receive from the canal of the first party, and to use in and upon the water lot or land belonging to and occupied by the second party (describing the land so owned by Whittlesey), during twenty-four hours of each day, Sundays excepted, such quantity of water as will naturally flow through one or more apertures containing in the whole seven hundred and fifty square inches of opening." The lessee was to construct the flumes, water courses, and raceways leading from the canal, and to make and maintain sufficient bridges for the passage of teams, over the length and width of every flume. The lease contains a provision for forfeiture for nonpayment of rent, and was duly recorded.

Immediately after the execution of the last-named deed, the Whittlesey Paper Company entered into possession of said premises, and have ever since continued to operate said mill and machinery, and use the water power and privilege so obtained from the Connecticut River Company until ejected by foreclosure proceedings, as hereinafter stated. The water is conveyed from the canal to the mill by a steel tube. There is a fall of about 27 feet available for power. The mills have always, for 50 years or more, been run by water power obtained from the canal, and no other water power is available. The mills could not be run by steam in competiOn July 2, 1900, Frank H. Whittlesey mort- tion with mills run by water power. Without gaged said premises to one Coffin to secure the water power the land and mills are the payment of $15,000, including, in the worth about $15,000, and with the water description of the property mortgaged, all power from $40,000 to $50,000. On the 3d of his right, title, and interest in said lease April, 1906, for the named consideration of from the Connecticut River Company, "and $30,000, the Whittlesey Paper Company asall rights to the use of water appurtenant signed to John C. Moore of Philadelphia, subto said land and granted in said lease," ject to the $15,000 mortgage to Coffin, all its which mortgage is still outstanding. On the "right, title and interest in and to a cer4th of October, 1905, Frank H. Whittlesey, tain lease of water privilege, describing in for the named consideration of $1, conveyed the assignment, the lease executed as above the mill property to Sidney A. Morley by stated by the Connecticut River Company to warranty deed, subject to the Coffin mort- Frank H. Whittlesey, and on the 23d of Ocgage, which the grantee assumed. The deed tober, 1906, said Moore assigned his interreferred to the land conveyed as the same est in said lease to the defendant. Neither as that conveyed to the grantor by the deeds Moore or Porter have ever had possession of from Seymour and from Farist and Windsor, any part of said land, or ever used said waabove referred to, and described the water ter power. The plaintiff, by assignments privilege as follows: "Together with all my made March 10, 1906, became the owner of interest in and to a certain lease of water the mortgage and notes given as aforesaid by privilege from the Connecticut River Com- Morley to Frank H. Whittlesey. When the pany to F. H. Whittlesey, dated July 2, 1900, first of said notes of $5,000 secured by that and recorded. * * On the 4th of mortgage became due, on March 4, 1906, it October, 1905, Morley mortgaged the prop- was not paid, and on the 18th of October, erty back to Whittlesey to secure the pay- 1906, the present plaintiff commenced forement of 15 notes of $5,000 each, one payable closure proceedings against the Whittlesey each year, during the succeeding 15 years. Paper Company, and said Moore was also In this mortgage the land was bounded as made a defendant; the complaint alleging in the deed of the same date from Whit- that he claimed an interest in the mortgagtlesey to Morley, and was further described premises. The complaint described the ed as "the same land this day conveyed by the grantee herein to the grantor herein, together with the buildings thereon standing, also * [here follows a list

mortgaged property as it was described in the mortgage to Whittlesey.

The present defendant, Porter, appeared in said foreclosure suit to defend in the name

his claimed ownership of said lease of said water privilege, under the said assignments of the Whittlesey Company to Moore and Moore to Porter, whereupon the plaintiff amended her writ and complaint by striking out the allegation that Moore claimed an interest in the mortgaged premises, and also the name of Moore as a defendant, and on the 8th of March, 1907, obtained a judgment foreclosing the Whittlesey Paper Company of all right to redeem the property described in the judgment file, and in the recorded certificate of foreclosure, as it was described in the mortgage.

of the property mortgaged, the water power and privilege cannot properly be said to have been expressly granted, the law will imply a grant of such rights and privileges connected with the described property as are necessary to the reasonable enjoyment of it for the purposes for which it was conveyed, and which the mortgagor had the power to grant. Collins v. Driscoll, 34 Conn. 47; Bushnell v. Proprietors of Ore Bed, 31 Conn. 158. "A grant of a thing will include whatever the grantor had power to convey which is reasonably necessary to the enjoyment of the thing granted." 3 Washburn on Real Property (4th Ed.) p. 394.

Was the water privilege in question so annexed as an appurtenance to the mill property that it passed as an incident to it, under the Morley mortgage? The word "appurte nant" means "attached to" or "belonging to," and in law the term "appurtenance" general

There was no appraisal of the mortgaged property, and under the execution issued March 11, 1907, the Whittlesey Paper Company was ejected from the premises, and the plaintiff placed in possession thereof, since which time she has operated the mills and used the water privilege, and has paid the rent therefor to the Connecticut River Com-ly means something appertaining to another pany, and said company has credited the plaintiff therewith on said lease. The plaintiff alleges in the present action that nel ther the deed from the Whittlesey Paper Company to Moore, nor that from Moore to the defendant, conveyed to either of them any interest in said water privilege granted to the owner of said land, and that said recorded deeds are a cloud upon her title to the land, mills, and water privilege, and tend to render the same less available to sell or rent, and asks that said deeds to Moore and to the defendant be declared invalid, and that they be set aside. The trial court rendered judgment for the defendant.

Theodore M. Maltbie and William M. Maltbie, for appellant. Charles Welles Gross, for appellee.

thing as principal and passing as an incident to such principal. Harris v. Elliott, 10 Pet. 54, 9 L. Ed. 333; Anderson's Law Dict. That incorporeal rights not before attached to a particular property may, when they are to be used in connection with it, be made appurtenant to it, when such is the intent of the parties, by a separate grant of such rights is unquestionable. Williams v. Wadsworth, 51 Conn. 277, 305; Bissell v. Grant, 35 Conn. 288, 296. "Although it is an undoubted proposition that whatever is properly appurtenant to the principal thing granted passes with it, it is not always easy to apply the term so as to determine whether the thing under consideration is appurtenant or not." 3 Washburn on Real Property (4th Ed.) 394. Whether in a particular case a right or privilege acquired by a separate grant is such that by subsequent conveyances of the property upon which it is to be exercised it will pass as an incident or appurtenance thereto must necessarily depend largely upon the character of the right as originally granted; the nature of the property upon which it is to be exercised; the need of such a right for the full enjoyment of that property so conveyed; and the intention of the parties as shown by the language of the instrument creating the right, read in the light of the surrounding circumstances. Russell v. Heublein, 66 Conn. 486, 491, 34 Atl. 486; Chappell v. N. Y., N. H. & H. R. R. Co., 62 Conn. 195, 204, 24 Atl. 997, 17 L. R. A. 420; Bissell v. Grant, supra; Strong v. Benedict, 5 Conn. 210, 219.

HALL, J. (after stating the facts as above). Upon the facts above stated the plaintiff claims that the water privilege described in the lease of July 2, 1900, from the Connecticut River Company to Frank H. Whittlesey, became a right inseparably annexed as an appurtenance to the mill property, that as such an appurtenance it was conveyed by Whittlesey to Morley by the deed of the former of October 5, 1905, and was reconveyed to Whittlesey by the mortgage back to him from Morley of the same property, on the same day and that therefore neither Moore nor the defendant took anything by the attempted assignments of the water privilege by the Whittlesey Paper Company to Moore, and by Moore to the defendant. If the water privilege is to be regarded as so annexed as an appurtenance to the mill property by the lease of July 2, 1900, it was reconveyed to Whittlesey by the Morley mortgage, even though it was not expressly named in the deed. 3 Washburn on Real Property the mill property, which Whittlesey then (4th Ed.) p. 394; Green v. Collins, 86 N. Y. 246, 40 Am. Rep. 531. If from the use of the words "with appurtenances thereof" in the ha

The particular privilege under consideration was created by the grant or lease of the Connecticut River Company to Frank H. Whittlesey, July 2, 1900, and was one which could be granted as strictly appurtenant to

owned. Smith v. Moodus Water Power Co., 35 Conn. 392, 401; Frink v. Branch, 16 Conn. 260; Kennedy v. Scovil, 12 Conn. 317, 325;

it neither could make any use of the water privilege. The attempted assignments to them of the water privilege carried no interest in the land, and they had no right to redeem under the plaintiff's mortgage. The water right was not severable from the land, and the assignees, therefore, took nothing by the attempted assignments. They were wholly invalid. Washburn's Easements and Servitudes (3d Ed.) 36; Cadwalader v. Bailey, 17 R. I. 495, 503, 23 Atl. 20, 14 L. R. A. 300; Phillips v. Rhodes, 7 Metc. (Mass.) 322, 324; Garrison v. Rudd, 19 Ill. 558, 564.

was granted with words of inheritance, and by it was by the mortgage deed from Morley, for a term which made it, though technically reconveyed to Whittlesey as an appurtenance a chattel, real (Flannery v. Rohrmayer, 49 to it. Smith v. Moodus Water Power ComConn. 27), yet practically a fee defeasible pany, supra; Frink v. Branch, supra; Brown only upon failure to perform certain condi- v. Thissell, 6 Cush. (Mass.) 254; Blood v. Miltions. Brainard v. Colchester, 31 Conn. 410. lard, 172 Mass. 65, 51 N. E. 527. Since The privilege granted is expressly described neither Moore nor the defendant owned or in the lease as a right "to draw and receive possessed the mill property, or any part of from the canal and use in and upon the water lot or land," described by metes and bounds, which then belonged to Whittlesey, the described flow of water, and the facts found and the language of the lease show that the privilege granted was to be used for power, and other manufacturing purposes. The property upon which the privilege was to be used is called in the lease a "water lot." It was mill property. It had been used as a mill for 50 years or more, and during that period had been operated by power procured from the canal, by contract with the Connecticut River Company; and, in the deeds of the mill property to Whittlesey, which are referred to in his deed to Morley, the then existing water privilege from the canal is described as "connected with" and as "appurtenant to" the land conveyed. The facts found show that the privilege granted is indispensably necessary to the operation of the mill, and that without it the value of the property would be reduced two-thirds in value.

There is error, and the judgment is reversed, and the case remanded, with direc tions to render judgment for the plaintiff in accordance with the views above stated. The other Judges concurred.

(109 Md. 682)

MONUMENTAL BREWING CO. v. LARRI-
MORE.

(Court of Appeals of Maryland. Jan. 13, 1909.)
1. MASTER AND SERVANT (§ 332*)-INJURIES
TO THIRD PERSONS-ACTIONS-QUESTION FOR
JURY.

Evidence, in an action for injuries to plaintiff, a street car conductor, while he was on the running board of a street car passing defendant's wagon, caused by the dropping of the it struck the plaintiff as he passed, held suffiend board of the wagon in such a position that cient to take the case to the jury on the issue of defendant's negligence.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 332.*]

2. MASTER AND Servant (§ 302*)-LIABILITIES FOR INJURIES TO THIRD PERSONS-NEGLIGENCE OF SERVANT.

The intention of the parties to the lease that the privilege granted should go with the land is clearly shown by the language of the lease itself, which, while it grants an assignable privilege, expressly limits the enjoyment of it to the land described. It is shown, too, by the acts of the parties. The plaintiff is the wife of the lessee of the water privilege, and is now operating the mill by means of it, under a claim of right under the decree of foreclosure; and the Connecticut River Company, by receiving rent from her, recognizes her right to do so, notwithstanding the attempted assignments to Moore and the defendant. From the fact, among others, that A person in control of a wagon on a street the mortgage from Morley to Whittlesey was along which cars are passing is charged with to secure the payment of $75,000, probably knowledge that cars are liable to pass, and it is the whole or a large part of the purchase his duty to so place the wagon and manage it price of the mill property and water privi-cupants or persons in charge of passing cars so far as he reasonably can as not to expose oclege, and that the conveyance to Morley by to danger of collision. Whittlesey and the mortgage back were apparently one transaction, it is difficult to conceive that it was not Morley's intention, if his intention in the matter is at all important, to include the water privilege in the mortgage. It is hardly to be believed that he thought he was securing to Whittlesey the payment of $75,000 by conveying to him the mill property, while he retained himself the means of operating it.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 302.*] 3. TRIAL (§ 174*) REQUESTS FOR INSTRUCTIONS- CONSTRUCTION - "PROCEEDINGS” — "PLEADINGS.'

A prayer to withdraw an action from the jury which makes no reference to the pleadings presents only the question whether the facts that might properly be found by the jury from the evidence constitute a good cause of action, and, if the prayer refers to the "proceedings," it does not by that term include the "pleadings," as We reach these conclusions in the case: the "proceedings" consist of successive acts The lease from the Connecticut River Com- done and steps taken as parts of the suit durpany was made for the benefit of the factory of the statements of the litigants, in legal form. ing its progress, while the "pleadings" consist property, and the water privilege granted of facts constituting a cause of action and

[Ed. Note. For other cases, see Trial, Dec. | judgment against it in the superior court of Dig. § 174.*]

S. S. Field, for appellant. Horton S. said: "Just after the front of the car passSmith, for appellee.