Edgett v. Douglass

Opinion, Me. Chief Justice Paxson: This case involves some questions of fact which could have [102] been more appropriately settled at law. Indeed, had this point been made below, we would have been inclined to sustain it. But where parties submit to the jurisdiction, and take their chances of a decree in their favor, the objection here comes with a bad grace, and will not as a general rule avail, unless the want of jurisdiction is so plain that we would feel justified in dismissing the bill of our own motion. Aside from this, in the view we take of the case, the disputed facts are not of special importance,' as it turns in a great measure upon the proper construction of the reservation in the deed of October 16,1866, from William R. Fisher and wife to Henrietta Peterson. The language of said reservation is as follows: “ Reserving to the party of the first part sufficient water to run a grist-mill on the same mill-dam, and the right at all times to maintain a dam across the Tunungwant creek where the dam now is, and the right to flow the land hereby conveyed so far as ma3r be necessary for the use of the water privilege.” We think the master and the court below took a narrow view of this reservation. Their construction of it was, in the language of the former, “ simply to give him (Fisher) the right to flow this land and to maintain a dam across the Tunungwant creek where the same now is. He reserved no right to enter upon his grantee’s land for any purpose, although this land was the subject matter of the trade.” The master’s view, as we understand it, was that the right to maintain the dam consisted solely in the right to keep up the breast-work across the creek, and to overflow the seven acres; but he has failed to enlighten us how the dam is to be maintained if the bank by the' side of the creek is washed away, so as to allow the water to escape. In such case, repairing the bank which crosses the creek would be of no avail. In this case, there was á break in the side of the dam, and admittedly on the plaintiff’s land. This break could only be repaired by going upon the land of the latter, and it was in doing this that the alleged trespasses occurred. It is to be observed that the reservation is “ to maintain a dam across the Tunungwant creek where the dam now is; ” that is to say, the right was reserved to maintain the dam in its length and breadth as it existed at the time of the reservation. This included all the banks by which the water was confined. The right to maintain the dam means the right to keep up the [103] banks, and, if they are washed away, to repair them. The right to repair necessarily involved the right to go upon the land for that purpose, and must have been so understood by the parties to-the reservation at the time it was made. Were it otherwise, the reservation would have been worthless, and we are not to presume that the parties intended a vain thing. We are of opinion that the defendant has the right to go upon the plaintiff’s land, for the purpose of making any repairs to the bank necessary to maintain his dam. The decree is reversed, and the bill dismissed, at the costs of the appellee.