Madore v. Horn

Per Curiam : The learned judge below differed from the master in his construction of the words, “ the said piece of ground to be used for milling or manufacturing purposes only,” contained in the deed from J. W. Madore et al. to G. Newton Horn. The master held that the words referred to created an estate upon condition; the court, that they did not. We are not-called upon to decide which was right, as we think upon the merits the bill was properly dismissed. The deed contains no covenant to erect a mill of any kind upon the property; the grantee acquired a right to do so, and to make use of the water power. The grantor has no legal cause to complain that his grantee does not exercise all the rights and privileges which he purchased and paid for. And even if a covenant to build a mill could be implied, no time was fixed within which it was to be done. It appears, however, that since the bill was filed the grantee has erected a grist-mill, which was intended to be operated by steam. The appellants object to this and say he should have used the waterpower. There is nothing in the deed which requires him to do so, and we cannot look elsewhere for it. The previous understanding of the parties, if there was one, must be presumed to have been merged in the deed. There is no averment of fraud,' accident, or mistake in its execution. There was no attempt to reform it. It was alleged, however, that the appellee is using the property for other than milling or manufacturing purposes. He did erect a building for manufacturing purposes, but was unable to use it as such. It is now occupied as a store and dwelling-house. If we give the language quoted from the deed the effect of a covenant, we do not regard this as a breach. It must have a reasonable construction. A covenant to use property_for manufacturing purposes would imply the right to use it for all purposes incident to such object. There must be a house or houses, for those who operate the establishment to live in, and we cannot say that a store to supply their wants is not germane. The matter of the coal-yard does not require discussion. There was no coal-yard upon the lot. It is true the master finds there was, but in this he was mistaken. The only evidence upon this subject is that of J. W. Madore, one of the plaintiffs, who [26] said, “ I am not certain tbat any part of Horn’s coal-yard proper is on this lot. He gains access to tbe coal yard and tipple over tbe lot.” Upon tbe merits tbe plaintiffs bad no case. Tbe decree is affirmed, and tbe appeal dismissed at tbe costs of tbe appellants. On October 14, 1889, a motion by tbe appellants for a re-argument was refused.