Nicodemus v. Nicodemus

Robinson, J. delivered the opinion of the Court. In 1829, John Mcodemus, under whom-the appellant claims, built a mill at or near “the Little Antietam Greek,” and dug a tail-race for the use of said mill, through the lands of Valentine Mcodemus, his father. In 1835 Valentine the father died, and devised the lands through which the race was dug, to his son Jacob, the appellee, with the following reservation however to his son John: “ Whereas, I have deeded to myson John a tract of land equally in worth to the above said two tracts of land adjoin ⁵³⁶ iug the same, and whereas my son John has a tail-race through part of the land which I have hereby given to my son Jacob, so it is my will that my son John shall have the right to said race, he and his heirs forever, although my son John shall not at any time'make said race deeper or in anywise larger, but shall have the liberty to clean said race when he may think proper, without doing any harm on the lands of my said son Jacob.” There is a branch which runs through the lands thus devised to-Jacob the appellee, and empties into the race about seventy feet above the flood-gate. Ordinarily this branch is but a feeble stream, but after heavy rains the volume of water is largely increased, and quantities of sand and gravel are washed into it, and thence into the race, thus filling up the same, and backing the water upon the wheel of the mill.

To prevent this, the appellant proposed to build a stone culvert over the top of the race, commencing at the point where the stream empties into the race, and extending to the flood-gates below, in order that the. water,, sand and gravel from the branch might pass through this culvert and thence into the creek below. The culvert was to rest upon stone walls to be built on each side of the race, to construct which, it was necessary for the appellant to enter with his horses, carts, and workmen upon the land of the appellee. To restrain him from so doing, and also to restrain him from constructing the culvert as proposed, the appellee applied to the Court below for a writ of injunction. The appellant'contends, that the grant of the race itself under the will of his father, carries with it the exercise of every right, necessary to the use and enjoyment of the same.

Conceding this to be true as a general rule, the difficulty here is, that it nowhere appears in this record, that the constraction of the culvert is necessary, in the- sense in which that term is used and to be understood, to the use and enjoyment of the race, On the contrary, the proof ⁵³⁷ shows, that for more than forty years the race has served all the purposes for which it was made by occasionally clearing it out in the ordinary ivay. It may be true, that the construction of the culvert might prevent the deposit of sand and gravel from the branch into the race, and thus save the appellant the labor and expense incident to cleaning out the same. But the more fact that it might serve his convenience, confers no right upon the appellant to enter upon and use the lands of the appellee for the purpose of constructing the culvert as proposed, thereby subjecting the servient estate to an additional servitude, not warranted by the terms of the grant, nor necessary to the use of the race. If then, the mere grant of the race itself, confers no such right, can it he inferred under the reservation in the will of Valentine bTicodemus the father?

We think not. The reservation to John, under whom the appellant claims, was to clean out the