Page:Federal Reporter, 1st Series, Volume 6.djvu/559

 BANK OF BRITISH NOBTH AMBBICA V. MILLES. 6e7 �existence and priority of the mortgage to Apperson, but claiming that such mortgage doea not include the water right and easement aforesaid, and praying a sale of the prem- ises and a distribution of the proceeds aocording to such admission and claim. On June 18th the'bill was taken for confessed as against Miller and wife. On May 3d the defend- ant Apperson answered, alleging that at the date of his mort- gage and long before, the defendant Miller was the owner in fee of the real property described in the mortgage, and also of the easement and water right aforesaid ; that there was a gristmill and warehouse and other tenements upon said prop- erty, used by said Miller and his grantors for the manufacture, storage, and shipment of flour, wheat, and mill offal ; that at the date of said mortgage, and long before, the said Miller and his grantors had annexed and made appurtenant to said lots said easement and water right, and used the same to propel the machinery of said mill and warehouse ; and that they are included in his mortgage. On August 2d the defend- ant Apperson filed a cross-bill stating therein the facts con- tained in his answer, and praying for a sale of the premises, includingthe easement and water right, and that the proceeds be first applied to the payment of his debt and costs of suit. The plaintiff answered the cross-bill, denying that the ease- ment and water right \vere included in the defendants' mort- gage. Eeplications to the answers to the bill and cross-bill were filed, and testimony taken upon the point in issue. The case was argued and submitted upon the pleadings, evidence, and a stipulation as to the facts concerning the origin and ownership of the easement and water right up to the date of the defendants' mortgage. From this stipulation it appears that the easement and water right aforesaid were created and vested in Moore, Marshall, Stevens, and Switzler, afore- said, by the deed of Daniel Harvey and Eloisa, his wife, dated August 9, 1864, — the two-fifths thereof to said Moore, and one-fifth thereof to each of the other of said grantees, — upon sundry conditions as to the use thereof not material to this controversy ,- that at the date of such couveyance said ��� �