Biglow v. Battle

Parker, C. J. There is no doubt that the action is well brought. The objection is that, as the defendants held, by lease under the plaintiffs, a right to draw off a part of their water for the use of the defendants’ works, if they exceeded the quantity which, by the lease, they were entitled to take, the plaintiffs’ remedy was upon covenants in the lease. But with respect to all the water not granted by the lease, it is as if no lease had been made; and then, if the plaintiffs are injured by means of drawing more water from their mills than the lease gave a right to, they have, by the common law, a right to this action. *As to the construction of the lease, we think it clear that the right reserved by the plaintiffs to as much water as would be sufficient for 5000 spindles of a cotton factory which might afterwards be erected, does not limit the use of the water by the plaintiffs to a cotton factory. The true intent of the reservation was, that water should, at all times, be left sufficient to carry the 5000 spindles. For it cannot be imagined that the plaintiffs would limit and restrict the use of their own privilege; nor could it be of any importance to the defendants, when the contract was made, to what use that part of the water should be applied to which they had no claim. Per Curiam. Judgment on the vet diet.