Jerome Hill, Appellant, v. Isaac Priestly, Respondent

Jerome Hill, Appellant, v. Isaac Priestly, Respondent. (Argued February 6, 1873; decided February 11, 1873.) This was an action of trespass. Defendant pleaded title to the locus i/n quo. He claimed title under a deed which contained a grant in fee simple absolute of the premises, then followed the following clause, “ excepting the conveyance of the foregoing described premises is made for a water privilege to the party of the second part and nothing else.” Held, upon the authority of Qraig v. Wells (11 H. Y., 315), that this clause did not'create a condition, and was not a - reservation. That as an exception it was repugnant to the title granted, and therefore void. Plaintiff offered to prove that from the time of the conveyance both parties, and their grantees, up to the commission of the alleged trespasses, treated the conveyance as granting but an easement. The evidence was excluded. Held, no error. That it is only where the language of a contract is indefinite or ambiguous that the acts of the parties in carrying it out are received as a practical construction of it; also, that the evidence of any force tended to show the clause an exception which, if established, rendered it void, as repugnant to the grant, and therefore it could not have varied the legal aspects of the case. Samuel Ha/nd for the appellant. H G. Latham for the respondent. [MAJORITY — Per Cueiam] Per Cueiam opinion for affirmance. All concur, except Chukch, Ch. J., not voting. Judgment affirmed.