Richardson v. Clements

Mr. Justice Mercur delivered the opinion of the court, May 7th 1879. This is a case stated. The parties own adjoining lands. Both properties were formerly owned by a Mr. Hallowell. While thus the owner of the whole he put in a hydraulic ram, on that portion of the land now owned by plaintiff, and thereby supplied with spring water his mansion-house on the land now owned by the defendant. He conveyed the whole property to Mrs. Butler. She continued for some time, to use the hydraulic ram to force the water to her house; but afterwards substituted a water-wheel in place of the ram. While thus procuring the water by means of the wheel, she conveyed about twenty acres of the land to one McNulty, from whom plaintiff acquired title. On the part conveyed was situated the farm-house, spring-house, poultry-house, and a large barn. She retained about seventeen acres, on which was the mansion-house, stone barn, stables, gardener’s house and green-house. The deed which she executed to McNulty, contains the following clause, “ subject nevertheless to the right and use by the said Gabriella M. Butler, her heirs and assigns, of a supply of spring water, by means [505] of a hydraulic ram, wheel, or other process of forcing water to the said Gabriella M. Butler’s premises ; together with the free ingress, egress, and regress, to and from a certain pond, on the premises hereby conveyed, for the purpose of keeping up the same, and making all necessary repairs thereon, so that a supply of water may at. all times be had; and of taking ice therefrom when it first freezes of sufficient thickness suitable for filling the ice-house on the premises of said Gabriella M. Butler, her heirs and assigns.” After her sale Mrs. Butler continued to use the water-wheel until she conveyed to the defendant. He has continued to procure the -water by the same process. He has established on the premises “ a family or private boarding school.” Now he has entered on the premises of the plaintiff with workmen “ to remove the water-wheel, and in place of it, and on the site thereof, to build and erect a wind-mill, with which, using wind as a motive power, he would supply his premises with water from the plaintiff’s premises.” The question is whether, under the reservation in the deed, the defendant can enter on the premises of the plaintiff for the purpose mentioned and substitute a Avind-mill in place of the water-wheel. The court beloAV was of the opinion, the defendant had that right, and entered judgment in his favor on the case stated. It may be conceded, when the language making an exception or reservation in a deed, is doubtful, it should "be construed more favorably to the grantee. It is only Avhen it is doubtful, that this rule can be applied. It has no place when the language is sufficiently clear to define the character and extent of the exception or reservation. How is it in the present case ? An agreement is the assent of tAvo minds to the same thing. It should be construed in the light of existing facts and circumstances under which the parties entered into it. It should be so interpreted as to effect the objects in respect to which the parties proposed to contract. What then were the circumstances when this contract was executed? The main object to be secured and protected, Avas a supply of water. It Avas essentially necessary for a proper enjoyment of the premises which she retained. While she OAvned the Avhole property she had put in and used such forcing power as she saAV proper. The hydraulic ram had proved unsatisfactory to her, and she had substituted a Avater-wheel. She Avas uncertain whether that would continue satisfactory. She Avas unAvilling to limit the exercise of her right to the use of the wheel; nor if she changed it, did she wish to be compelled to return to the ram. She desired to be untrammelled as to any precise process in forcing the water. She Avas unable or unwilling to name all the different mechanical powers by which she might obtain the Avater. With all these objects in vieAV, the conveyance declares that it is subject “ to the right and use of Mrs. Butler, her heirs and assigns of a supply of spring Avater.” The method of procuring it may be [506] “ by means of a hydraulic ram, wheel, or other process, of forcing water.” The primary and ultimate end of the reservation, is stated nearer the closing part of the contract in these words “ so that a supply of water may at all times be had.” To secure this .end, not only either of the methods already tried might be employed, but also “ other process of forcing water.” A perpetual supply of water was to be reserved. The language used indicates no intention to deny the use of such improved process as science may discover or mechanical ingenuity invent for forcing water. It may not be an injurious or offensive process not contemplated in the reservation. The windmill is not averred to be either the one or the other ; nor that it works any substantial injury to the plaintiff, either by oecuying a larger quantity of land, or by taking an increased volume of water. The question is simply, whether a windmill is itself outside of the “ other process ” reserved ? We think it is not. The learned judge was correct in entering judgment in favor of the defendant. Judgment affirmed. Woodward, J., dissented.