#### Den on the demise af CLEMENTINE EVERETT et al v. ALFRED DOCKERY.

A conveyance of'a tact of land'by A to B, containing- the words “ 0's mill seat- excepted;"' was SeW not to convey to C the soil5 upon which water had been ponded for the use of a mitt for twenty years.

The existence of an, easement on land,, such, as the privilege-of ponding water-on it. for the use of a mill, is not sueh,o,dverse possession of it by the holder of the servient tenement,.as to prevent the owner of the dominant tenement from conveying the right of soil

Agtign of EJECTMENT., tried before Sheí>hebi>,, Judge, at the Spring Term, I860, of Richmond Superior Court.

The lessors gave i» evidence-a grant fro-nst Ike State to Thomas Dockeiy* dated ini 1771; then a deed from him to William Webb, dated in 1806; then a dieed from William?, John, Richmondiand' Alexander Webb to Euclid A. Everett* the ancestor of the lessors of the plaintiff, dated 1st of Janua.ry, 1842,. and offered evidence further, to prove the defendant in possession-, and a-Isoy that the-land described in the grant and the two.deeds,.included th®-l'ocu& in quo. The deed from-the Webbs, contains a description-of the land bjr metes and bounds, following, a general description, which is as follows.: “ lying on. both sides of Cartidge-’s ©reek, with Alfred/ Doclcery's mill seat excepted.” The lessors further showed, that they, and those from-whom, they claimed* had been in possession of the-land described' for from, thirty t®> fifty years, and that their boundaries were known and? visible. They further-offered evidence,, that the mill of the defendant was disused by him. for several, years* aadi that from four to six acres* where the pond had been, were in cultivation, under fence, in the year 1855^ when this- suit was brought. When! the deed, in 1842, was made to Euclid Everett, the-defendant was in occupation of the mill.

The defendant then offered evideneev that he- had? built a mill on Cartidge’s creek, which he had occupied for twenty years previous to 1845 ; that the water had been ponded con.tinually during that time, up to the limits where the fence? *391had been placed in 1855, and that he had cut trees in the pond for logs, which had been sawed up at the mill.

The Court charged the jury to enquire,, first, whether the grant and deeds, offered by the lessors of the plaintiff, covered the land sued for, and if they should find this fact for the lessors of the plaintiff, they shouM next enquire, whether the defendant was in possession at the bringing of the- suit, and if they should find this to be so-, whether he had been in possession twenty years before the right of the lessors accrued.. The jury were further instructed that the- ponding of the water upon the land and the cutting of timber from time to time, were not, in themselves, an occupation, actual and adverse, but only evidence of a claim- to- the thing so used ; that the occupation for twenty years of the mill would be a possession, from which the law would» presume the- qecessary assurance of title to the defendant, and that with the mill would pass, whatever else had been so- held that was needful for its use and enjoyment. And the Court further instructed; the jury, that if the defendant had such possession on the 1st day' of January, 1842, (the date of the Webb deed) no title passed by it to- Euclid A. Everett, under whom the lessors claimed. The plaintiff’s counsel excepted to these instructions.

Yerdict for the defendant, and appeal by the plaintiff.

R. H. Battle, for the plaintiff.

No counsel appeared for the defendant in this Court.

Battle, J.

It cannot be disputed that the lessors of the plaintiff established, by their proofs, a full and complete title to the land in controversy, unless the exception in the deed from the Webbs to the ancestor of the lessors included it, or the defendant had acquired it himself, or prevented the lessors from acquiring it by his adverse possession. It. is clear, that, the exception in the deed referred to, gave no title in the soil of the mill-pond to the defendant. By it, he could acquire, at the utmost, only the land necessary for the mill-site,, the dam and the right of ponding the water upon the soil *392above as an easement; Whitehead v. Garris, 3 Jones’ Rep. 171. - This being so, as it undoubtedly is, no length of time in the enjoyment of his easement, by the defendant, could take from the lessors and give to him the ownership of the land covered by the water. The lessors certainly had no right of action against the defendant for keeping up his dam and ponding the water back upon their land, and if he had conlinued to do so for fifty years, instead of twenty, it would not have availed him any thing towards acquiring a title to the soil. His Honor erred, therefore, in leaving it to the jury to infer a title in the soil from such possession. The cutting of trees in the pond for saw-logs was equally unavailing to the defendant. It is not stated how many he eftt, nor during how long a period he was engaged in doing it. It is simply said that “ he cut trees in the pond for logs, which had been sawed up at the'mill.” This was not such an adverse possession as, if continued for seven years under a color of title, would have ■conferred a title on the defendant; Green v. Harman, 4 Dev. Rep. 158 ; Loftin v. Cobb, 1 Jones’ Rep. 406. It could not, therefore, prevent the deed from the Webbs, which was executed in 1842, from passing the title which they had, to the ancestor of the lessors. Neither, as we have already shown, could the enjoyment, by the'defendant, of his easement in the mill-pond, have that effect. His Honor erred again in that part of his charge. The result is, that the judgment must be reversed, and a venire de novo awarded.

Per Curiam,

Judgment reversed.