Shed v. Leslie

The opinion of the court was delivered by Hall, J. The most important questions in the case relate to the construction of the deed, or lease, from Chamberlin to duimby in 1797. [504] It is insisted in behalf of the defendant, that the deed of Chamberlin conveyed to (Juimby the right to use, in such manner as he might choose, such quantity of water, as would be sufficient for carrying a fulling mill and shears for a clothier’s shop ; while it is claimed on the part of the plaintiff, that the deed restricted the use of the water to the purpose of driving a fulling mill and shears. To sustain the position of the defendant, that the grantee of Chamberlin and those claiming under him, having acquired the use of the water for one purpose, are entitled to use it to the same extent for other purposes, the case of Saunders v. Newman, 1 B. & Ald. 238, [3 Steph. N. P. 2749,] is much relied upon. The question in that case, however, did not arise upon the construction of a grant. In England the owner of land upon a stream, by twenty years use of the water, acquires a right to such use, as against the owners of land, on the same stream, above and below him. In Saunders v. Newman the plaintiff had occupied a mill for forty years, but had recently changed the construction of his water wheel, though not in such manner as required the use of more water, than was before used. The defendant, who had forced the water back upon the plaintiff’s new wheel, claimed the right to do so, because the form of its construction had been changed, by which, it was insisted, the plaintiff had lost his ancient right to the use of the water. But the court held differently, and said, in reference to a right thus gained by ancient user, that, where a party has thus acquired a right to use water for one purpose, he may use the same extent of water for a different purpose, provided it does no prejudice to any other owner in his use of the water. But this case had no reference to the construction of a .contract in regard to the use of water, or of a grant of the use of it, — which grant must doubtless be construed by the same rules, that govern in other cases, — the intention of the parties being the matter to be looked after in the construction. On a careful examination of the deed from Chamberlin to (Juimby, we feel constrained to hold, that the right to use water for a fulling mill and clothier’s works, only, was intended to be conveyed, and that the parties had not in their minds the fulling mill and clothier’s shears as a mere measure of the quantity of water, that might be used. In the beginning of the deed the grant is declared to be “for the purpose of having the business of a clothier [505] carried on, and in consideration of five shillings.” And though the description of the right conveyed, if it stood alone, might perhaps be construed to embrace a quantity of water for general purposes,— the words being, “ water sufficient for carrying one fulling mill and shears for one clothier’s shop,” — yet the habendum, of the deed clearly shows, that the right conveyed was not designed to continue any longer, than the grantee, his heirs and assigns, should carry on the clothier’s business. When that business should cease, the right to use the water was to terminate. It could not, therefore, have been the intention of the parties, that the water should be used for other purposes, than for clothier’s works. This being our view of the grant from Chamberlin to Cluimby, it follows, that we find no error in the charge of the court in regard to the quantity of water, which the defendant might use for his carding machine, of which the defendant is entitled to complain. This construction of the conveyance from Chamberlin to Cluimby also disposes of the question, made in regard to a tenancy in common, as well as that in relation to the right to the water retained by Chamberlin, and to which the plaintiff has succeeded. We must decide both these points against the defendant. It is objected, that there was not sufficient evidence of a contract for the use of the water, between the plaintiff and defendant, to entitle the plaintiff to recover in this action. But there appears from the bill of exceptions to have been some evidence, tending to prove that the defendant used the water by permission of the plaintiff; and though it would seem not improbable, that the jury came to a wrong conclusion upon the evidence, and charged the defendant, when their verdict might very well have been the other way, yet that is not a matter that can be reviewed on a bill of exceptions. The verdict of the jury upon the evidence is conclusive. The only remaining question in the case is in reference to the admission of the deposition of Patterson. The deposition appears to have been taken and certified in due form, except that the certificate of the oath of the deponent is not signed by the justice. It is insisted in behalf of the plaintiff, that the signature of the justice, which appears to the caption below, is to be considered as attached to both certificates, and that the deposition was therefore properly admitted. But this is not a compli [506] anee with the statute. The form provides for two signatures of the magistrate, and on consideration we think it will not do to dispense with either. In this case there is a blank left for the signature of the justice to the certificate of the oath. The omission of the signature leaves the paper imperfect. It does not appear to have been the intention of the justice to embrace this certificate in his signature of the other, and the omission may have been for the very reason, that the oath had not been administered. If the deponent were indicted for perjury, it would, we think, be difficult to maintain, that the deposition was proper evidence, that the oath had been administered. We therefore think the deposition was wrongly admitted. The judgment of the county court is reversed, and a new trial granted.