Avon Manufacturing Co. v. Andrews

Dutton, J. Two questions only in this case require the decision of this court. The first is whether parol evidence was admissible to show what was conveyed by a certain deed, and the other whether the deed itself was admissible in support of the allegations in the declaration. 1. The litigation in this case undoubtedly had its origin in the different constructions given by the parties to a deed from Charles Whittlesey and others to Luther Wheeler and others, from whom the plaintiffs derive title, dated April 13, 1847. This deed transfers to the said Wheeler and others “ the right at all times hereafter of taking, drawing and using the water from said dams and ponds respectively, [previously referred to in the deed,] for the working, operating or carrying any other mill or mills, machinery or establishment, which shall hereafter be set up or erected upon the site of their present grist mill, or within the distance of ten rods in either direction — 482 — from the same, to the same and no greater extent than they now have a right to do, or have been accustomed to do, for the working, operating or carrying of their said grist mill.” The plaintiffs offered parol evidence to show the manner in which, and the extent to which, the said Wheeler and others had been accustomed, at and prior to the giving of the. deed, to take water from the pond of the defendant, which was on the stream in question above the plaintiffs’ factory. To this the defendant objected, but the court received it for the sole purpose of showing what was meant by the expression “ or was accustomed to do.” The defendant insists that his ruling was erroneous. He asks us to infer from a consideration of all the parts of the deed, which appears in full in the case, that it was not the intent’ of the grantors to transfer to the grantees any right to the water which they did not own before, but merely to confirm their existing rights and authorize them to use them at a different place. We think that this would be doing violence to the plain language of the instrument. The grantors convey to the grantees the right of taking water “ to the same and no greater extent than they now have a right to do, or have been accustomed to do.” The construction claimed would require that these last words should be stricken out. If any general inference to the effect claimed by the defendant could be drawn from the other parts of the deed, which however we do not think is apparent, the construction must be against the grantors, and these words must have some effect given to them. If this could be supposed to refer to rights acquired by prescription, they would be superfluous, as all existing rights had been specified, and it could make no difference whether such rights had beén acquired by .prescription or otherwise. If this is the proper construction of the deed then clearly this evidence was admissible. 1 Greenl. Ev., § 288. Doolittle v. Blakesley, 4 Day, 265. 2. In the next place, it is with great apparent confidence insisted that the deed and evidence connected with it were improperly admitted to prove the allegations in the declaration, on the ground of variance. First, it is claimed that the plaintiffs allege a right as — 483 — riparian proprietors, and that the proof is of a title by deed. This claim is founded we think on a manifest misapprehension of the averments in the declaration. The strongest of them is, that the plaintiffs were entitled to the right that the water “ should flow without interruption to, through, and along their said race-way to their said factory, according to the natural and usual flow of said stream.” There is not an intimation in the declaration that the plaintiffs claimed the right as riparian proprietors. Indeed the plaintiffs’ land is not even bounded on the stream. Their factory is said to be situated “ near to a certain stream called Nod Brook, from which stream or brook, by means of a certain canal or race-way extending from said stream to said factory,” the water is brought to it; clearly implying that the factory stands at some distance from the .stream. No declaration was ever drawn setting out a riparian right without very different averments. The terms “ natural and usual flow,” are used merely to show the extent of the plaintiffs’ claim. The same objection was made and overruled in the case of Twiss v. Baldwin, 9 Conn., 291, in which the declaration contained the identical words. Williams, J., in giving the opinion of the court in that case, says (page 304:) “ If the allegation respecting the natural course of the stream, or the right to enjoy it without interruption, were stricken out, it would not affect the plaintiff’s right to recover.” In the second place it is strongly insisted that the evidence admitted tended to prove in the plaintiffs an easement in the defendant’s land ; that is to say, a right under certain circumstances to go upon it and open the gates to his pond, as well as a right to the water of the stream. If this evidence was claimed and admitted for any such purpose, there would be weight in the objection. But it manifestly was not. The plaintiffs’ right to the use of the water accrued by virtue of a deed, and he could not show his right to the water without reading the deed in evidence. The whole deed and accompanying evidence must be taken together to show what right the plaintiffs had to the water of the stream. It has been suggested that the right to take Water from the defendant’s pond, — 484 — which the latter had created by erecting a dam across the stream above the plaintiffs’ land, was a different thing from the right to take water from the stream. But this position is clearly untenable. The water does not cease to be a part of the stream by being kept from flowing by a dam. On this question of evidence it can not be assumed that the defendant had any right to detain the water. But it could make no difference if he had, so far as it regards the question whether the water in the pond was a part of the natural stream. The case stripped of all extraneous matters, presents merely the ordinary question, whether the plaintiffs, who have alleged a general absolute right to the enjoyment of the stream of water, can prove a limited and qualified right. They allege a right to the natural and usual flow of the water, and their evidence tends to prove the right to have the water flow through “ certain gates in the flume other than the saw-mill gate,” when the saw-mill was not running. The plaintiffs’ right to the water did not depend at all upon the point whether they had the right to enter upon the land and open the gates, or whether it was the duty of the defendant to open them. Their right to the water would be the same in one case as in the other, and the wrong done to them by being deprived of it by the defendants would be as great in one case as in the other. The plaintiffs have not brought their action for a violation of their privilege, if they have any, of opening the gates. They do not claim to recover for any deprivation of such a right. They sue because the defendant prevented the water to which they were entitled from flowing to their factory. If A should deed to B a lot of growing "timber, with the right to cut and carry it away, and after B had cut a part of' it and left it to be removed, should prohibit him from removing it, and should claim the timber, it could not be seriously claimed that in an action of trover brought by B the deed would not be admissible as evidence of title to the timber, although it would also be evidence of a right to enter and cut it. It is not easy to see why in this case the deed should not be admissible to show a right to the water, as well as the deed in the case supposed to the timber. — 485 — It is too late to contend that a plaintiff can not allege a general right and prove an inferior special right, except in certain cases where special contracts or specific titles are alleged. Evidence is admissible which tends to prove what is averred, although it may prove less or more than what is averred. Even in actions of assumpsit, an allegation that the defendant promised, is sustained by proof that the defendant promised jointly with another. 1 Ohitty’s PL, 46. So if a plaintiff, to a plea of infancy, replies that the goods sold the defendant were necessaries, he can prove that a part of them were. Id., 615. In actions of tort there is scarcely an exception to the rule that the plaintiff may prove less than he avers and recover. In assault and battery, however aggravated the case may be as stated in the declaration, proof of a mere assault is sufficient. In trespass and trover, proof of the taking or conversion of one article of a hundred specified, is sufficient. Even in ejectment, proof of ouster as to any part of the land described in the declaration is admissible. But it is needless to refer to any cases except those where the right to a flow of water was in issue. In Burdick v. Glasko, 18 Conn., 494, the plaintiff alleged that his land lay on the Pachaug river, and that he had the right to the free course of the water of the river, coming much nearer to a claim as riparian proprietor than the plaintiffs in this case do, yet the court • allowed him to prove by an indenture a much more limited . and qualified right than the case now before us presents. In Wier v. Covill, 29 Conn., 197, the plaintiff, under an allegation “ that he had a right to a flow of the water in groat abundance and plenty,” was permitted to show a right to a small flow of water. Indeed we do not see how we can hold the evidence in this case inadmissible without directly overruling the case of Twiss v. Baldwin, 9 Conn., 291. The declaration in that case con tained almost the same expressions as in this. The evidence of the plaintiff’s right in that case as in this was a deed, which passed the right to convey the water by a race-way as in this case to a factory, with this addition, that the race-way was to run through the lot of another owner before it reached the — 486 — plaintiff’s factory. The deed by implication granted the right to enter on the grantor’s land and open the race-way if necessary. It was admitted that the right of the plaintiffs in the present case was in many respects qualified by the right of the defendant to use the stream above the race-way. The same objection substantially was raised in that case as in this, the point was fully discussed by Williams, J., and the court unanimously held the evidence admissible. It is impossible to distinguish that case in principle from this. The plaintiffs, as we have seen, did not offer to prove their right to open the gates as a basis of recovery, and claim nothing for the infringement of it. There is no reason to suppose that an infringement of this right was regarded by the jury as a basis of recovery or damages, for it must have been apparent that the evidence of it was brought into the case merely on account of its inseparable connection with proof that was admissible. These, as we have said, are the only points necessary for our consideration, and on these we ‘concur fully with the views taken by the judge on the circuit. But the defendant complains of a part of the charge of the judge, which we agree with him is erroneous, but the error lays no foundation for granting to him a new trial. We deem it proper however to notice this part of the charge to prevent misapprehension hereafter. The defendant on the trial offered in evidence the record of proceedings in a former trial between the same parties, in which the present defendant was plaintiff, for the purpose of showing that by the verdict and judgment in that case, his right to the use of the stream as he claimed it had been conclusively determined in his favor. In the former case the present plaintiffs had, under the general issue, given notice of the same right which they now claim to establish, and that they had only exercised that right. The plaintiff in that case recovered ; thereby, as the present defendant insisted, showing that the present plaintiffs’ title was disallowed and that of the present defendant established. The learned judge did not sustain this claim; but having clearly and fully explained the general effect of verdicts and judgments, he went on to say:—“ But there may have been another issue — 487 — presented by this record, arising out of the notice of the defendants. This notice contains an allegation that the Avon Manufacturing Company, and those under whom they claim a right to their cotton mill, have, for more than twenty years last past, been accustomed to have, and have had, the right to draw water from said pond as their convenience and necessity required. The plaintiff might have replied to this allegation in two ways. 1. He might have denied it. Then the issue would have been on the truth of the allegation. The defendants, upon tendering this issue alone, would admit the allegations in the declaration to be true, but might still claim that the plaintiff ought not to recover because all the defendants did was done by virtue of the right which they had set up. The plaintiff by denying this allegation would have admitted that if the allegation were true he had no right to recover. Or, 2nd, the plaintiff might have replied to the allegation in this notice, by saying that it is true that the defendants have the right thus set up by them, that is, the right to draw water from said pond as their convenience and necessity required, still the plaintiff is entitled to recover, because the defendants have exceeded their right so to draw the water, that is, that they have drawn more than their convenience and necessity required. If the issue in this part of the case was formed in the manner first stated, that is, by denying the allegations of the defendants, and the verdict of the jury had been for the defendants, the record would have been conclusive evidence that the defendants had the right set up in their notice. But- if the verdict had been for the plaintiff, then the record would have been conclusive evidence that the defendants had no such right as they set up in their notice. If the issue was formed in the manner last stated, that is, by admitting the right claimed but alleging an excess, and the issue found for the plaintiff,' the record would be conclusive evidence that the defendants had exceeded their right, but if found for the defendants, then it would be conclusive evidence that the defendants had not exceeded their right. Which of these issues was presented to the jury in the trial of that case is a question of fact for your determination.” — 488 — We think this part of the charge was manifestly erroneous. The judge seems to have proceeded on the assumption tha t an issue in pleading may be formed partly in writing and partly by parol. But an issue is defined by Chitty, (1 Chitty PL, 652,) to be “ a single, certain and material point, issuing out of the allegations or pleadings of the plaintiff and defendant.” It can not be formed by a mere parol denial by one party of an allegation of the other. A notice is a mere extension of the general issue. If the doctrine of the charge is correct, half a dozen issues can be made by a mere similiter. As the issue must be formed by the pleadings in writing, the question of what issues are formed on the record is one for the court, and can not, as it was in this case, be left to the jury. It is not easy to see, if it could have'been left to them, how it could be proved except by the former jurors themselves and without violating the sanctity of the jury-room, which could not be allowed. Smith v. Sherwood, 4 Conn., 276, 282. Sintzenick v. Lucas, 1 Esp., 43. We think therefore that the charge on these points was erroneous, but, as the evidence was offered by the defendant, and the error operated or might have operated to his advantage, he is not entitled to a new trial. In this opinion Hinman, O. J., concurred.