Bushnell v. Proprietors of Ore Bed

Dutton, J. The principal question in this case is, what right the defendants acquired, by a certain award and a deed given in pursuance thereof, to float dirt, slacks and particles of iron ore upon the land of the plaintiff. The submission, award and deed, are fully detailed in the motion. It has been claimed by the counsel for the defendants that the right conferred on them by the award is more extensive than that specified in the deed, but the view which we take of the case renders it unnecessary to see whether there is any such distinction, or what would be the effect of it. The deed conveys the “ right and privilege ” “ to dischai’ge, float or carry slacks, dirt and particles of ore into and upon said meadow, (and the lands described,) which may accrue, float or be carried in said stream of water and discharged on said lands, from and by the ordinary mode and manner of washing iron ore in said stream by the Proprietors of the Ore Bed in Salisbury.” It is admitted that the plaintiff owned the pasture lot on which he claims the injury was done when he gave the deed, and that it lies adjoining the meadow, that so far as this question was concerned the defendants washed their ore in a proper manner, and that the injury to the plaintiff’s pasture resulted from the flow of the water, surcharged with the result of the washing, from the meadow upon the pasture land. The plaintiff insists that he conveyed only the right to deposit the particles of dirt, &c., upon the meadow. This is denied by the defendants. The question for us to decide is, what right was in fact conveyed. The construction of the deed, if it is doubtful, must be taken most strongly against the grantor. We do not think it partakes sufficiently of the character of a judicial deed to vary the construction. The language of the deed is apparently that of the grantor. It does not appear that he objected at all to the terms of it. At all events the award would of it itself convey quite as full a right as the deed does. In civil as well as in criminal matters, men are presumed [158] to intend the probable consequences of their acts. A grantor is presumed to intend to convey, so far as it is in his possession, whatever is necessary to the reasonable enjoyment of the ^tiling conveyed. It is well settled law that if the owner of / a lot conveys it to another person while there is upon it a f dwelling house with windows opening upon another lot of thev ' grantor, neither he nor his heirs or assigns can erect a building upon the second lot so near as to exclude the light from the dwelling house. Roswell v. Prior, 6 Mod., 116. Story v. Odin, 12 Mass., 157. In such a case the deed conveys a privilege extending beyond the limits of the lot conveyed, although not named in the deed. If A should grant to B the privilege of ponding his land up to a given line, it would not be contended that A would have a right of action against B, although the ponding should render his adjacent land marshy and less valuable. We think the principle involved in such cases is applicable to the present case. The defendants clearly had the right to make the water of the stream flow and leave deposits all over the meadow. But it manifestly would not all remain on the meadow, unless confined there by some artificial embankment, which the defendants were not bound to make and would have no authority to make. The parties must therefore have contemplated such a result as has in fact followed the flowing. The submission furnishes evidence that if the plaintiff had intended to reserve a right of action for this unavoidable flowing of his pasture lot, it would have been provided for. It speaks of damage claimed by the plaintiff to have been sustained, and provides for such as should accrue, showing that the parties intended to put an end to all further dispute or controversy. Why should they do this and still leave room for further difficulty ? The deed also guards against any liability on the part of the plaintiff, by reason of the flow of the water from the meadow land upon the land of other adjoining proprietors or upon the highway. The fair inference is that the plaintiff had in mind the tendency of the privilege which he had granted to injure the [159] adjoining land. From his silence with reference to his own it is reasonably to be inferred that he intended to abide the consequences. What has been said is not intended to apply at all to the right of the plaintiff to recover for whatever damage he can prove he has sustained, either in the meadow, pasture lot, or other land belonging to him, caused by the deposit of dirt, slacks, &c., which were not the result of the washing of ore in the ordinary manner. It was claimed by the counsel of the defendants, that inasmuch as the jury did not find any damage outside of the pasture lot, it was virtually finding that no damage was done to the plaintiff’s land except by the washing of ore in the ordinary manner, as they say that if any such damage had been done it would have first injured the meadow. It is unnecessary to notice this claim, as a new trial must be granted for error in the pro forma charge of the judge, and the verdict being thus annulled can not be used for any purpose. In this opinion the other judges concurred.