Drummond v. Hinkley

Wells, J. — The several interests of the parties to this bill were derived from John Pearson. The defendants claim the use of the water, by virtue of a deed from Pearson to Hinkley, one of the defendants, bearing date September 9, 1830. This deed provides for the manner, in which the water is to be taken from Pearson’s saw-mill flume, and conducted to Hinkley’s flume; and it further provides that Hinkley “ is to have a gate of twelve inches square, or equal to that, in his flume.” The water is to be taken from such gate. The defendants admit, in their answer, that they have no right to a greater quantity of water, than would flow through “ a gate twelve inches square, or equal to that,” in the flume, and say they have not used any greater quantity. They state, that the wheel used by them, is Valentine’s centrifugal reversing water-wheel. “ Said wheel has an upright shaft, and is placed at the bottom of the circular part of the flume, revolves upon an iron plate, and is enclosed in a circular band or gate of iron ; the wheel has twelve apertures, averaging less than two inches in width, and six inches in length, and is set in motion by raising the said circular gate of iron, in which it is enclosed, and all the water, which passes from the flume, passes and escapes through the twelve small aper [436] tures, iu said wheel, which are the only gates, or gate-ways or openings, which draw water from said flume.” They deny, that more water passes through the apertures, than would by a gate twelve inches square. The testimony on .this point is contradictory. It is principally derived from experiments, and the opinion of machinists and mill-wrights. But from the view we have takén of the case, it is unnecessary to decide upon it. The mode of estimating the volume of water, as expressed in the deed of John Pearson, cannot be disregarded. He had a right to prescribe the manner in which the quantity of water should be ascertained, and he has done so. It was to be by a gate in the flume, twelve inches square, or equal to that. The gate may vary in form, from a square, but its area is limited to a superficies, equal to twelve inches square. If a gate of a larger size is made, and the water is taken through several apertures, although the proper quantity of water may be taken, the grantee of Pearson has never obtained the right to have such a gate, in the flume. Pearson must have intended to prescribe such mode of measuring the water, as would be constantly open to inspection, and would be so obvious, that the quantity could never become the subject of controversy. It does not fall within the province of judicial tribunals, to mould the contracts of parties, into what they may think to be expedient, nor to limit or extend their meaning. It would be grossly unjust to change the simple and effectual mode, prescribed by the grantor, for determining the quantity of water, to one complicated and perplexing, and to depart from the literal and fair construction of his deed, and thereby involve his heirs in expensive litigation, to ascertain their rights. It is manifest, the grantor meant to express clearly in his deed, that the quantity of water should be measured by the size of the gate. So much water was to be taken, as would flow through a gate twelve inches square, or equal to that. The apertures, through which the water runs, in the wheel of the defendants, as we understand, are extended over a space more than twelve inches square. They are made over a [437] broader area, than is warranted by the deed, and are not permitted, in such manner by it. It may be that the grantor contemplated, by fixing the size of the gate, that the water should be used in one volume. Its quantity could be more easily ascertained when taken from one, than from several orifices. To ascertain the quantity of water, passing from twelve apertures, in the wheel, must necessarily require an accurate and careful examination, even when the wheel is at rest; and when in motion, it is difficult to perceive how they could be measured, except by the amount of water vented. Some of the witnesses say, that more water will pass through the apertures, when the wheel is in motion, than when at rest, and there is testimony entirely the reverse. Such a question could not be settled, in a manner entirely satisfactory, without actual experiment, but the measurement of the gate would determine the quantity very easily. The variance between the witnesses, is an apt illustration of the difficulties, arising from a resort to the apertures, to find the quantity of water. And if it were once settled upon any given number and size of them, the controversy might be renewed, as often as others of different size and number should be made. But we do not give any opinion upon the question, whether the water may be taken, from more than one opening in the flume. Yet we do mean to decide, that if it is taken through several apertures, they must be embraced within an area of twelve inches square, or one equal to that. The deed does not allow any larger opening than that in the flume. There is also another objection to the course pursued by the defendants, and which is not permitted by the deed. The water is to be drawn from the flume and is not to be used in it. The deed does not authorize the action of the wheel, in the flume. No such grant is made. The answer states, that the wheel is placed at the bottom of the circular part of the flume, and the passage of water through the apertures is the only mode by which it is taken from the flume. The grantor did not convey the right, to have the water set [438] in motion, by any machinery placed within the flume. It is not for us to say/whether such use of the water would be an essential detriment to him, but whether he has granted it. He had the power of judging of the degree of interference, which he would permit to be exercised, over his own property, and of .the manner, in which it should be done. The advantages to be derived from the use of improvements in machinery, can never justify the construction of- a deed, .differing from its plain and obvious import. The conclusion to which we have arrived, is, that the plaintiffs are entitled to the injunction for which they have prayed in their bill.