National Real Estate Development Corp. v. Lavale Water Co.

Adkins, J., delivered the opinion of the Court. ¹⁹² In this case the plaintiff sued in ejectment to recover certain alleged water rights. ' By deed dated March 9th, 1894, James H. Percy and wife conveyed to Charles Laber a tract of land called “None-such” in Allegany County, containing five acres of land, reserving, however, among other things not relevant to said proceeding, “the right to build a reservoir at the Braddoek Spring and to conduct water therefrom through said land by pipes laid under the surface of the ground to the adjoining lands and the right to repair the same from time to time forever. But nothing herein contained shall prevent or hinder the said Charles Laber from the use of the water of said spring.” On July 30th, 1917, the widow and heirs of Percy conveyed to John W. Snyder a parcel of land known as the Six Mile House farm, the northwestern boundary of which lies about 1,200 feet from the southeast boundary of “None-such”; and also “all their right, title and interest to and in a certain tract of land called ‘None-such/ ” (said tract being described as in the said deed to Laber). “The right, title and interest intended to be conveyed in this particular piece of property are all those rights reserved in a deed from James H. Percy, et al., to Charles Laber, dated March 9, 1894,” etc. By subsequent deeds the said reserved rights in “None-such” were conveyed to the appellant. By deed dated May 10th, 1923, Charles Laber and wife granted to the appellee, the defendant below, its successors and assigns, “the right in perpetuity to all the water in the spring on the tract of land known as None-such * * * being the spring now used by the party of the second part (the grantee) as part of the water supply to the people of LaVale and vicinity, this deed being subject to the rights, privileges, provisions, terms and conditions to the respective parties thereto to wit.” The rights and conditions follow, viz.: The grantee may construct such dams, reservoirs, basins, and structures as it may desire in order to conserve and protect the water supply from said spring; the grantee agrees to construct a concrete dam across the stream through said tract of land below ¹⁹³ said spring in order to intercept the overflow from the spring for the use of the grantors, and to construct a spring house for the use of the grantors, and to allow to flow to said spring house such amount of water as may be reasonably necessary for the proper use of said spring house, and to pay sixty dollars per year to the grantors so long as either of them shall live, for the rights and privileges