Hammond v. Woodman

Tenney, C. J. Prior to June 29, 1849, the South Paris Manufacturing Company were seized and possessed of certain real estate, situate on the east side of the Little Androscoggin river, and on the north and south sides of the road which crosses the same in South Paris. On the north side of the road were standing and in operation, a grist-mill, saw-mill and shingle machine; and on the south side were situated the — 198 — company’s factory and other buildings connected therewith, also in operation. The only dam, for the purpose of raising a head of water to work the mills and the factory, was on the north side of the road, and above the grist-mill, saw-mill, &c. There was a protection wall on the easterly side of the river, running parallel therewith, evidently regarded as useful for the security of the mills and the factory, against the operation of the water, as it flowed down the river. At the time referred to, the factory was supplied with water from the dam, taken through a flume of considerable length, across the company’s land above the road, and under the bridge across the river. In this flume spouts had been inserted, through which water had been taken to carry a corncracker in the grist-mill, and also the shingle machine, standing above the road. On the day before named, a deed to the plaintiff, and purporting to have been executed by the agent of the company, and who, it is insisted by the plaintiff, was duly authorized to make an effectual conveyance, was given of all the real estate belonging to the company, which lay on the northerly-side of the road, viz.: the grist-mill, saw-mill, factory store, shingle machine, and all the apparatus and utensils thereto belonging. Then follows in the deed a description of the land by metes and bounds, with the exception of certain buildings standing thereon, but not of the land covered thereby. “Excepting also and reserving the right at all times, to take and use water sufficient to drive the factory and machinery attached. Said Hammond is to maintain one quarter part of the dam across said river, and the bulkhead at the head of the grist-mill, and one quarter part of the protection wall; and the. said company are to maintain the bulkhead at the head of the factory flume, and one-half of the dam across the river. Said Hammond is to use the water to drive his mills, and any machinery, at all times, until it comes down to the lowest place in the dam, as ascertained by the measurement of John Howe in the year 1848, and then the saw-mill is to stop. But he is also to have the right, to — 199 — use the water after that, so long as he can do it without impeding the speed and usefulness of the factory.” On Nor. 20, 1852, the company conveyed to Woodman, True & Oo. all the real estate owned by it, at South Paris, that lay on the east side of the river, and on the south side of the road, excepting, &c., bounded, &c., together with the buildings thereon, including the factory store, boarding house, dry houses, &c.; also all the machinery and manufacturing utensils and apparatus, of every kind, pertaining to the manufactures there carried on,. and now used, together with all the water privileges on the east side of said river, owned by said company, subject to all duties, limitations and restrictions pertaining to the same, as by the deeds of the same will appear, reference being had thereto; the grantees herein to keep reasonably tight flumes and gates used by them to prevent waste of water. On the day of the date of the deed last referred to, the plaintiff and Albert M. Hammond conveyed to Woodman, True & Co., all their right, title and interest in and to all the estate, real and personal, conveyed by the company, by deed of the same date, thereby conveying to the grantees their joint and several interest in the premises and property described in the deed of the company to the grantees. The plaintiff alleges in his writ, that he was seized of the interest conveyed by the company on the day of its deed to him, and so continued to the day of the commencement of his suit; and also that, since Juno 29,1849, he has been accustomed to use the water running in the river, by taking the same from the flume leading from the dam down stream under his grist-mill to the factory, by means of or through a penstock or water spout, extending from said flume to his water wheel, said wheel having been built for the purpose of carrying his shingle machine, said wheel and shingle machine being in use, in manner aforesaid, when the mills were conveyed to him; and he was further accustomed, since the time aforesaid, to take and use the water from the factory flume, for the purpose of driving a corncracker, circular saw and — 200 — turning lathe, being in his grist-mill and connected with' a water wheel standing under the same, which wheel was driven by means of water, which the plaintiff had a lawful right to take, and has been accustomed to take from the factory flume, through a small flume adjoining thereto; and the plaintiff avers that he was lawfully seized of the right to take and use the water running in the river, in manner aforesaid, and for the said purpose, at all times without hindrance. Then follows the allegation that, on August 15, 1854, the defendants unlawfully and without right, tore away the penstock or water spout, and his said flume connected with the factory flume, and refused to permit the plaintiff to take and use the water running in the river, for the use of his shingle machine, and his machinery aforesaid, and has stopped up the passages for the flowing of said water from the factory flume upon the plaintiff’s wheels, and has so kept the passages stopped to the time of the institution of this suit. The defendants severally plead the general issue, and in brief statements, with allegations in defence, deny the right of the plaintiff to insert in the factory flume the spouts and to draw water from the factory flume, which is alleged to belong to Woodman, True & Co. And it is also alleged that, before the plaintiff’s spouts were cut off from the factory flume, he was requested to take the same away, but refused to do so. Evidence was introduced by the parties upon the issues before the jury; and the Judge instructed them, that the deed of the company to the plaintiff, of June 29, 1849, conveyed to him in fee, the real estate described, subject to the reservation, “excepting also and reserving the right at all times to take and use water sufficient to drive the factory, and the machinery attached;” that the subsequent clause in the deed had reference to the use of the water by the grantee from the dam, and not from the factory flume; that the deed from the company, and the deed from the plaintiff to Woodman, True & Co., of Nov. 20, 1852, conveyed to the grantees, the fee in the real estate therein described, including the factory, together with the reservation in the first deed contained; — 201 — and the reservation secured to Woodman, True & Co., the free and uninterrupted use and enjoyment of sufficient water at all times to drive the factory and machinery attached, and for such purposes they had the right to repair, or rebuild, when necessary, the factory flume; that however convenient it might be for the plaintiff to use the water from the factory flume, for propelling the wheels attached to his shingle machine and corncracker, yet if the use of the water so taken from the flume as generally used by the plaintiff during the continuance of the old, and as contemplated by him generally to be used from the new flume, was detrimental in any practical degree to the operations of the factory, such use would be inconsistent with the free enjoyment of the reservation, and the defendants were justified in taking the spouts from the new flume, and preventing the plaintiff from inserting either spout therein. But, if such was not detrimental in manner before stated, then the defendants were not justified in so doing and would be liable to the plaintiff, &c. The jury returned a verdict for the defendants; and they found also, that it was practicable for the plaintiff to take water for his shingle machine and corncracker wheels from either his saw-mill, grist-mill flume, or from the main dam, without interfering with the factory flume; and that such pei’manent alteration could be made for the sum of fifty dollars. It is a well settled rule of construction, that the grant of a principal thing shall carry with it every thing necessary for the beneficial enjoyment of that which is granted, and which the grantor has the power to convey. Thayer v. Paine & al., 2 Cush. 327. “By the grant of mills, the waters, floodgates and the like, that are of necessary use to the mills, do pass.” Sheppard’s Touch. 89. Where a party has erected a mill on his own land, and cut an artificial canal for a race way through his own land, and then sells the mill without the land, through which such race way passes, the right to such race way shall pass as a privilege annexed de facto to the mill and necessary to its beneficial — 202 — use. Johnson v. Jordan, 2 Met. 234; Blake v. Clarke, 6 Greenl. 439; New Ipswich Factory v. Batchelder, 3 N. H. 190; Nichols v. Luce, 24 Pick. 102. Before the conveyance of the company to the plaintiff, the flume to the factory had been prepared and used as the only mode of conducting the water to the factory for the purpose of driving the machinery therein; and it is not suggested that any other mode was referred to, or contemplated by the parties; but the -flume is treated in the deed as the passageway of the water, which was to remain for the use of the factory. The dam above the plaintiff’s mills, and the protection wall, were evidently designed to be for the common benefit of both parties to the deed; hence the propriety of their being kept up, and in repair, at the expense of both, though in unequal proportions, probably on account of the unequal value of the interests owned by each party, respectively. The bulkheads at the heads of the grist-mill and the factory flumes,were to be maintained in severalty, clearly indicating that one was principally, if not exclusively, for the use of one party and the other for the other. The deed of the company to Woodman, True & Co., of Nov. 20, 1852, imposed upon the grantees the burden of keeping the flumes and gates used by them reasonably tight to prevent waste of water. The factory flume, — upon the examination of all the deeds in the case, to which the plaintiff is in effect a party, and from a construction to be given from an examination of all parts thereof, — was a necessary part of the factory itself, and the right therein was reserved to the company, and passed to Woodman, True & C.o., as appurtenant thereto. Co. Litt. 121, (b) and 122, (a); 1 Ven. 401. If a lessee for years of a house and land erect a conduit upon the land, and after the time is determined, the lessor occupies them together for a time, and afterwards sells the house with the appurtenances to one, and the land to another, the vendee shall take the conduit and pipes, and the liberty to amend them. Nicholas v. Chamberlain. Cro. James, 121. — 203 — When the use of a thing is granted, every thing essential to that use is granted also. Such right carries with it the implied authority to do all that is necessary to secure the enjoyment of such easement. Prescott v. White, 21 Pick. 341; Prescott v. Williams, Adm’r, 5 Met. 429, and cases cited; Pomfret v. Recroft, 1 Ware’s Saunders, 323, note 6. The instruction to the jury, that for the purpose of the enjoyment of sufficient water at all times to drive the factory and machinery attached, Woodman, True & Co. had a right to repair, or rebuild when necessary the factory flume, was legally correct. The provision in the deed of the company to the plaintiff, touching his rights to the use of water at different conditions of the river, had reference to the amount secured to him, of that which should be confined for the use of the mills and the factory, and not to the manner in which, or the place from which it should be taken. The instruction therefore, that the subsequent clause in the deed had reference to the use of the water by the grantee from the dam and not from the factory flume was strictly correct. The reservation in the deed; of the company to the plaintiff of the right at all times to take and use water sufficient to drive the factory and machinery attached, as between" the parties thereto, is as effectual to secure to the company the right reserved, together with the easement and servitude so as to charge the lands of the plaintiff, as by a deed from the owner of land to be charged, granting the same as appurtenant to other estate of the grantee. Bowen & al. v. Cormer, 6 Cush. 132. Especially must it be so here,, where the plaintiff himself conveys by his own deed the whole interest reserved. It is not perceived that the reservation referred to in the deed of the company to the plaintiff, is any less strong in its effect, than the right “ to the free and uninterrupted use and enjoyment of sufficient water at all times to drive the factory and machinery attached.” The principal thing secured is sufficient water at all times for the purpose expressed. If this — 204 — were not free and uninterrupted in its enjoyment, it cannot be said that sufficient could be taken at all times. The plaintiff’s counsel, however, insists, that as he had the right to drive his mills at all times until the water is reduced to the lowest place in the dam, as ascertained by the measurement of John Howe in the year 1848, the Judge erred in informing the jury that the reservation secured to Woodman, True-& Co. the free and uninterrupted use and enjoyment of sufficient water, at all times, to drive the factory and machinery. It cannot be doubted that, by the deed of June 29, 1849, it was the design of the parties thereto, that the rights of the plaintiff should in some respects be subordinate to those of the company in the use of the quantity of water. When it was down to the mark made by Howe, the saw-mill was not permitted to run; manifestly for the reason, that its running would retard the operations of the factory. And after the saw-mill had ceased to work, the plaintiff could use the water only so long as it did not impede the speed and usefulness of the factory. But the grounds for allowing the plaintiff’s mills and the company’s factory to run at all times, when the water was above the mark in the dam, was undoubtedly that it had been satisfactorily ascertained that, until such reduction of the quantity of water in the dam, it was sufficient to drive all the machinery belonging to both parties, and at all times. At any rate, to give a reasonable construction to the deed, it must have been so understood by those interested, at the time of its execution; and such supposed state of facts has not been attempted to be disproved. It does not appear that the instructions to the jury upon this branch of the case, were based at all upon any supposed controversy between the parties, that the quantity of water taken by Woodman, True & Co., was or was not greater than that which under the deeds they were entitled to use. The suit is certainly not for the defendants’ having taken a greater — 205 — amount of water than was secured to them; or for preventing the plaintiff from using, at all times, the amount of water which belonged to him; but it is for preventing him from taking it from the factory flume through his spouts, and cutting the spouts off therefrom, without regard to the quantity of water so taken. And the instructions to the jury, that Woodman, True & Co. were secured in the free and uninterrupted use and enjoyment of sufficient water, at all -times, to drive their factory, must have had reference to the question really involved, which was whether the taking of the water by the plaintiff from the factory flume, through the spouts, was inconsistent with the rights of Woodman, True & Co., under the reservation in the deed. These instructions, when taken in connection with those which follow, and applied to the issues presented, are not perceived to be erroneous. The factory, and all the appurtenances belonging to it, were retained by the company when it conveyed the mills on the north side of the road, with the reservation touching the use of the water for the factory. The property so retained, having come to Woodman, True & Co., they stand in the place of the company, at least. The factory flume being necessary to the operation of the factory and the machinery attached for the passage of the water, and no right secured by the deed to the plaintiff to take water therefrom for the use of his own mills, any withdrawal of the water through the spouts, detrimental in any practical degree to the operations of the factory, must necessarily be unauthorized by the deed. If the plaintiff could with impunity take water in that manner, to the interruption of the rights of Woodman, True & Co., to the least practical degree, it is not perceived that any limit exists to a further use, which might be extended indefinitely, and to the destruction of the rights reserved for the operations of the factory. But it is insisted for the plaintiff, that at the time when the conveyance was made to the plaintiff, and afterwards to Woodman, True & Co., the corncracker and shingle machine were carried by water taken from the factory flume by means — 206 — of, or through spouts; and hence it must be presumed that it was intended by the company, and the plaintiff, and by Woodman, True & Co., that the right so to take water for the purposes designed, was reserved to the plaintiff by acquiescence of other parties interested. • It is to be considered that the property in the mills, and the factory and the lands connected with each respectively, was entirely that of the company, prior to the deed to the plaintiff. The manner in which the water was taken to be applied to one part or the other, depended upon no fixed legal rights, but might be taken and used not only as necessity, but as convenience or pleasure dictated. The jury have found that the water was taken from the factory flume through spouts, to propel the shingle machine and corncracker, not from necessity, or even to save any considerable expense. And hence the manner adopted in taking and applying the water to the different parts, would not continue as matter of title, after the division, unless under some stipulation in the deed or other instrument under seal'. The factory flume would be appurtenant to the factory exclusively, unless it became necessary to take water therefrom for the use of the plaintiff’s machinery, which he had a right to operate, or unless, according to the instructions, it could be taken without being practically detrimental to the rights of Woodman, True & Co. The remarks of Shaw, C. J., in the case of Stanwood v. Kimball & als., in relation to a pipe taken from the defendants’ aqueduct, which they had cut off, and which cutting off was the cause of the action, are in point, it being in that case contended for the plaintiff, that it must be presumed that he designed to reserve that right, and the defendants acquiesced in it. “ Rut it is difficult to maintain this position. There can be no right by reservation, whatever may have been the interest or expectation of the plaintiff, for there is none made in the deed, and it is not competent to prove it by parol evidence; nor by grant, for none is shown or pretended; nor by prescription, for it was used a very short time.” — 207 — Several questions are presented in the exceptions on account of the rulings of the Judge in admitting and rejecting evidence offered. The inquiry made of Stephen Emery by the plaintiff, for the purpose of showing no consideration for the deed of the plaintiff to Woodman, True & Co., was clearly inadmissible. The deed purported to be for consideration, and it could not be contradicted by the plaintiff, who was the grantor, and the deed was effectual without consideration between the parties thereto. Alden Palmer, a witness for the defendants, was allowed to answer the following question, against the objection of the plaintiff, — “What would be the effect of opening and shutting the gates of the plaintiff’s shingle machine and corn-cracker, upon the water in the. factory ñume, and upon the machinery in the factory ?” The answer was, that the effect would be to produce a motion in the water of the flume, so that it would flow up towards the gate of the factory or recede from it, and give extra motion or retard the wheels of the factory for a short time. The right to put the question and receive the answer was upon the ground that the witness was an expert, or one experienced. It was in evidence, that the witness was a mill-wright and professed to be a civil engineer; had been employed in the construction of mills and factories for forty years. It cannot be doubted, from this evidence, he might well be treated by the Court as an expert and entitled to give his opinion touching a matter, so connected with his experience. Henry R. Parsons was asked a question in reference to the place where it would be proper to take the water for the shingle machine and corncracker wheels. Objection was made, on the ground that he was not an expert. It appeared that he had carried on the fulling-mill and two carding machines for twenty years in the same place; that he had used spouts for the purpose of propelling machinery; that he has owned mills and been acquainted with them for thirty years. He — 208 — must have been' experienced in business having relation to the question proposed, and the question was unobjectionable. The evidence before the jury was such, that their verdict and special findings do not appear to the Court to have been the result' in any degree of those influences, or misapprehensions of the facts, which authorize a Court to disturb a verdict. Motion and Exceptions overruled.— Judgment on the verdict. Rice, Cutting and Appleton, J. J., concurred.