Washburn & Moen Manufacturing Co. v. Salisbury

Knowlton, J. The plaintiff claims a right to use the water of Salisbury Pond, and of the reservoir above, called North Pond, for power and other purposes connected with its mill, which it bought of Stephen Salisbury, senior, by a deed bearing date July 1, 1868. It appears that the use of this water, or of a similar quantity from some other source, is necessary to the successful operation of the plaintiff’s manufactory in the manner in which it has been used. The plaintiff claims an easement created by an implied grant, and contends that the right to have the pond maintained, and to use the water, passed to it as an appurtenance under its deed. The doctrine under which easements are held to be created by an implied grant rests upon the principle, that the intention of the grantor is to be discovered by an application of the language of his grant to the subject matter to which it relates. If upon the whole instrument he appears to have intended to convey an easement by implication, the easement is held to have passed. All the rules which have been established in regard to this subject depend on this principle. A grant of a mill or of a dwelling-house ordinarily includes all such privileges in other land of the grantor as are necessary to the enjoyment of the thing granted. This is because, in the absence of anything to show the contrary, the grantor will be presumed to have so intended; but if in the instrument he negatives such an intention, the rule does not apply. In the case at bar, the parties seem to have been particular to make their meaning clear. In the first place, the real estate is described by metes and bounds, and all parts of the pond and of the brook are carefully excluded. The deed next defines the water rights which are created by it. The plaintiff is given a “ right to draw water from Salisbury’s Pond to the land above conveyed, through a six-inch pipe, by the natural flow of the water, so long as said pond is continued, and also a right to take water from the brook on the north line of the lot . . . for mechanical uses.” The grantor then reserves rights in the land conveyed, which have reference to the maintenance and use of the pond [352] for a time for his own purposes. He retains a right to enter the lot at the northwest corner thereof, at the south side of the flume at the bridge, for the repair of the flume, and a right to lay down and maintain a pipe of six inches bore from Salisbury Pond through the premises to Prescott Street, and also a right to maintain and keep in repair for twenty years a water-ram as then used on the lot conveyed.. If there were nothing in the case but this deed to show the intention of the grantor, there would be strong ground for contending that he gave the plaintiff no rights in the pond except those expressly stated. But the parties went further. On the same day, and as a part of the same transaction, another instrument was made, and the two must be considered together. The grantor leased to the plaintiff for the term of twenty years “ all the water in Salisbury Pond,” to be used for manufacturing purposes in connection with the property conveyed by the deed, subject to a reservation of a right to take ice from the pond during the term, and to convey so much water from the pond to the grantor’s land on Prescott Street, through the lot conveyed by the deed to the plaintiff, as would pass through a pipe of the bore of six inches. In the same instrument he leased another lot near by, the annual rent for the whole to be one hundred and fifty-one dollars, made up of one hundred and fifty dollars for this lot, “ and one dollar in addition to the considerations connected with the sale of the Grove Mills estate to the lessees, this day, for rent of the water.” The pond was created artificially, not far from the centre of the city of Worcester, where the land covered might be expected to become valuable for other uses. The two instruments taken together show plainly that the grantor did not intend to give the plaintiff a right to have the pond permanently maintained. The right expressly given to draw water through the six-inch pipe was limited to the time that the pond should be continued, thus implying that the grantor might at any time discontinue it. But as a part of the bargain, the grantor was willing, by the lease, to give the grantee a right to use the pond for twenty years. At the expiration of that time the plaintiff’s rights in it would cease if it should be discontinued, and would be limited to the flow through the six-inch pipe if it should be maintained. The subsequent conduct of both parties shows that they cor [353] rectly understood the. meaning of these instruments; for the rent for the use of the pond was paid by the plaintiff to the end of the twenty years. While it was the intention of the parties to the indenture of November 24,1849, as between themselves, permanently to connect their several rights in North Pond with their respective mills and privileges, they were not thereby precluded from carving up their several estates by deeds of sale in any way which they should choose, subject to the continuance of any incumbrance upon them which may have been created by the indenture. The title of the plaintiff is not enlarged by the indenture to include rights which are not embraced in the language of the deed. Whether, under any circumstances, rights created by the indenture could be enforced by other parties against the estate in the plaintiff’s hands, is a question which it is unnecessary to decide. We are of opinion that the plaintiff acquired no rights in the waters of Salisbury Pond except those expressly mentioned in its deed. Bill dismissed, with costs.