Jenkins v. Cooper

B. F. SAFFOLD, J. The appellant claimed damages of the appellee, for constructing a mill-dam and ditch upon his premises, whereby they were overflowed. They were separate purchasers of land from Hardin Long, who owned and operated a mill on “ Widow’s Creek,” and was seized of the adjacent land on both sides of the creek. The appellant’s deed bounded his land by a line running “ west to the Widow’s Creek, thence down the east bank of said creek, to the ford below the mill, thence with the centre of the creek to the section line,” &c. The appellee’s land, acquired subsequently, was immediately west of the line made by the east bank, and embraced the mill-house and “ other buildings.” Long continued to operate the mill, without objection from the plaintiff, until he sold it to the defendant. The latter abandoned the dam used by Long, and constructed the one complained of, lower down the creek, but still above the ford. It projected farther into and upon the eastern bank than the former one, but did not reach to the top. The court, construing the plaintiff’s deed, instructed the jury, that the top or brink of the bank above the ford was the boundary of his land on that side, and not the low-water line ; and, further, that he had conceded to Long such use and control' of the stream above the ford, as he was in the open exercise of at the date of his purchase, which use and control had passed to the defendant; but the latter could not so exercise this right as to impose on the plaintiff any greater injury or obstruction than before resulted. In interpreting written contracts, the intention of the parties is the guide. Parol evidence is inadmissible, to ascertain and establish the intention, as an independent fact, different from what is expressed. But what is meant by the words used is open to parol explanation of surrounding circumstances ; such as the occasion which gives rise to them, the relative position of the parties, and their obvious design. This evidence is available, both to the court and the jury ; but the province of each is more discernible in the particular case, than susceptible of expression in general terms. For instance, the intention of the grantor in making the deed, when ascertained from the deed alone, is for the court to determine, and not the jury. If the writing, although complete in itself, contains 'a term which it is impossible for the court to construe, without the aid of evidence aliunde, as in determining whether covenants are dependent or independent from performance within a reasonable time, it is proper to resort to such evidence for that purpose. But the identical boundary referred to in a conveyance is always subject to parol evidence, and, when disputed, it must be left to a jury to say which was intended. McCutchen v. McCutchen, 9 Port. 650; Drake v. Groree, 22 Ala. 409; Miller v. Cullum, [424] 4 Ala. 576 ; Add. on Contracts, 844-849. In this case, if there were two or more banks on tbe east side of tbe creek, it would be for tbe jury to say which was intended as the boundary. But, as there appears to be but one, and the question is, whether the bottom next to the water, or the extreme top, was intended, the court must decide. We think it decided correctly. Long did not intend to convey to the plaintiff any of his mill privileges. The very purpose of a dam is to raise the water above its ordinary height. The space between the top of the bank and the water was more appropriate for the use of the mill, than for that of the adjacent property above it. The difference between the water line and the centre of an insignificant stream was too small for the obvious design of the parties. The testimony of Scruggs, objected to by the appellant, tends to show an improper motive on his part in bringing the suit, viz., to harass the defendant into selling the mill property to him. Nothing appears in the transcript to show whether this was relevant or irrelevant. The action was for a tort to property, for which vindictive damages were recoverable; and in view of the multiform phases of such a case, we cannot say there was error in admitting it. Bolling v. Wright, 16 Ala. 664. The judgment is affirmed. Brickell, J., not sitting, having been of counsel.