Page:Federal Reporter, 1st Series, Volume 6.djvu/565

 BANK OF BRITISH KORTH AMERICA V. MILLER. 55b �by unity of possession in the grantor. The law gives a rea- sonable intendment in ail such cases to the grant, and passes with the property ail those easements and privileges which at the time belong to it, and are in use as appartenances." �Upon th^se authorities, as well as the reason of the case, in my jadgment, the conveyance to the defendant Apperson of the premises by metes and bounds, under the circumstances, passed the water right then owned by the grantor, Miller, and used in and upon the premises for any beneficiai purpose. �It is admitted by the counsel for the plaintiff that if the conveyance to Apperson had described the premises as a "mill," the water-power then used to run it vfould have passed with it to the grantee. But the conveyance was in fact of a mill — a mill was the actnal subject of the sale and convey- ance, the thing which the parties dealt with and for — and it is not apparent why the mere difference in the mode of de- scription of the property should make any such difference in the effect or resuit of the conveyance. �But, independent of this consideration, it is apparent from the circumstances that it was the intention of the parties tb mortgage the water-power as well as the land and buildings thereon ; because — (1) It was then in use upon the premises to run the mill and machinery then in active operation, and had never been used elsewhere, and must, in the nature of things, have been regarded as one property ; (2) it was an apparent and continuous easement in actual use upon and for the benefit of the premises described in the mortgage, and gave them at least one-third of their value and probably much more of their salableness; and, (3) without it the premises were not a sufficient security for the money loaned upon them. �And therefore, although this water-power is not nor never was technically appurtenant to this land or mill, so that it could not exist separately from them, and would pass by operation of law with a conveyance of them, independent of the intention of the parties, still, at the date of the de- fendant's mortgage it was in fact appurtenant to the prem- ��� �