Society for Establishing Useful Manufactures v. Haight

The Chancellor. The complainants have offered in evidence, the old lease from the society to Henry Berry, and which was assigned by him to Henry Godwin. It bears date in 18(1, and is for twenty-one years, reserving a rent of seventy-five dollars. It bounds on the river, and there is no limitation or covenant as to the head and fall of water between the canal and the river. They have also offered in evidence a counterpart of the lease from the society to Henry Godwin, in 1816. It is for seventeen years, reserving a rent of ninety dollars. This lease also bounds on the river, and is also without restriction or limitation as to the head and fall of water. If this case is to rest upon the lease between the parties, independently of any evidence that may go to explain, modify, or contradict that instrument; and independently of any agreement or understanding, which, although out of the lease, may be supposed binding in equity, there can, I think, be no doubt as to what ought to be done. The lease is absolute on the face of it. It grants, for a limited time, the use of the whole property, for a valuable consideration. There is neither doubt nor difficulty about it, and the bill must be dismissed as entirely groundless. But if evidence is to be admitted to show a state of things which existed prior to the lease, or to show the understanding of the parties as to certain rights directly affected by the lease, or the understanding of third persons in relation to property similarly situated, it may lead to a different result. I propose, then, to examine distinctly the evidence offered by the complainants in support of their bill, independently of the leases, and see how far it is admissible evidence ; and if admitted either in whole or in part, ascertain the effect of it on the rights of the parties. — 398 — There are three prominent matters relied on by the complainants:—l. There was a map, which they call a public map, of the premises, embracing all the mill lots on Boudinot street, of which the defendant’s is one. On the face of this paper, there is a written description of the property embraced in it, to which description is added these words : “ Each lot marked on this map can have a fall of water of twenty-two feet.” This map is proved to have been made for the society about the year 1808, by Abraham Willis, who was a surveyor. It was kept by Mr. Abraham Yanhouten, the society’s agent; and one of the witnesses says he saw it whenever he pleased, and that this was supposed to regulate the whole. The same witness says that he thinks he has seen the map three or four times; he remembers seeing it twice in one week. He saw it at Mr. Yanhouten’s house, and on the lot, and at the house of the surveyor while he was making it; since which he has not seen it until lately. Several saw it about the time the survey was made. Another witness testifies to the making of the map by Willis. He saw it directly after it ■was made, and has seen it frequently since, until within some years last past. He has not seen it lately, having had no occasion to see it. After the map was made he always referred to it as his guide. It is contended that this map is evidence in relation to the contracts, or to the rights of the parties under the contracts; and that, according to the map, the lessees are entitled to twenty-two feet head and fall, and no more. Taking this to be the case, is it evidence to contradict the lease ? If such is to be the effect of it, I am at a loss to perceive how it can be admitted. The general rule is against the admission. It is clear and explicit, and has been adopted upon great deliberation. The difficulty generally is, not as to the rule, but the exceptions to it; for like all other general rules it has its exceptions. In cases of fraud, mistake, surprise, or accident, clearly proved, parol evidence has been admitted. They raise an equity on a ground collateral to the deed, and “ may be holden to vary it accordingly Rich v. Jackson, 4 Bro. C. C. 419, in notis. But here there is no such ground laid. The complainants do not invoke aid on either of these heads of equity ; nor do they seek it because of any omis — 399 — sion in preparing the lease. But they attempt to bring in this map, and the facts that have been testified to in relation to it, as evidence of an agreement or understanding, as to the precise head and fall of water that the lessees were to enjoy, and that agreement or understanding made or had at the time the original agreement or lease was entered into; for if not then, when was it ? In this attempt they are opposed by well settled principles. Where there is a clear, subsequent and independent agreement, varying the original one, evidence of it may be received : but not where it is of a matter passing at the same time with the written agreement. In Movan v. Hayes, 1 John. C. R. 343, the chancellor says, the rule is established in this court, as well as at law, that parol evidence is inadmissible to disannul, or substantially vary a written agreement, except on the ground of mistake or fraud ; and the cases of Irnham v. Child, 1 Bro. C. C. 92, and Hare v. Shearwood, 1 Ves. jr. 241, are cited. It is important, too, to notice the fact, that this agreement or understanding, so far as it is to be inferred from the existence of the map, is expressly denied in the answer, in which the defendant swears that he never heard of any such map until after the filing of the bill. Such denial shows more clearly the propriety of excluding the evidence, and adds strength to the rule. 2. A second matter relied on, is the alleged general understanding of the lessees on that tier of mill-seals, that their right was limited to twenty-two feet head and fall. On this subject one of the witnesses, Clark, who leased in 1806, before the carrying away of the Van Winkle dam, testifies, that he thinks it was generally understood, after witness took his lease, that the lots to be leased on that tier had a head and fall of twenty-two feet. He was frequently asked, about this time, what was the head and fall, and he always informed inquirers that it was twenty-two feet. When he made his agreement with Mr. Boudinot, he was to have twenty-two feet head and fall, and it was so expressed in the agreement, which he gave up to the society fourteen or fifteen years ago. This agreement was before the map, and that fact witness states as the reason why it was expressed in the agreement. Charles Kinsey, another witness, states, that he lived in Paterson when the mill lots were laid out, — 400 — and always understood from common report that they had twenty-two feet head and fall. He has been inquired of by captain Ward and others on the subject, and always told them what was the common understanding. John Parke says, he has always considered that the lots on Boudinot street had twenty-two feet head and fall, and always told others so. He thought himself entitled to no more, and that if he had not so much he would be entitled to a remuneration. Admitting now, for the sake of the argument, that this evidence proves a general understanding that the lessees on that tier of lots were entitled to no more than twenty-two feet of water, (which 1 think it does not,) can such general understanding alter the tenor of a solemn instrument? Is it not altogether too vague and unsatisfactory ? There are some instances, it is true, where a general understanding and practice may be set up to explain a written agreement; but it must amount to a custom, and be pleaded as a custom from time immemorial. Such was the case of Wigglesworth v. Dallison, Dong. 201; where the custom of the country in favour of taking the way-going crop by a tenant, was set up and maintained. But even such custom cannot be insisted on if it be excluded by the terms of the agreement. This evidence appears to me to come precisely within the rule applied to the evidence respecting the map. It proves, if any thing, an agreement between the parties, or something in the nature of an agreement, made at the time of the lease ; and, affecting the rights of parties under the lease, it is clearly inadmissible. 3. A third matter relied on by the complainants is, that Henry Godwin, under whom the defendant holds by assignment, knew of this general understanding, and was bound by it; and that, consequently, his assignee is also bound. The only evidence on this subject is that of Clark, who says he heard Godwin say he had twenty-two feet head and fall; and he asked deponent if he had taken the height, and deponent said he had, that it was twenty-two feet. This was while Godwin occupied the lot, not when he made the agreement and took the lease; and being after the lease was made, if it proved “ a clear — 401 — and independent agreement, varying the lease,” it might be admissible. Bat it proves no such thing. The deduction to drawn from it, is, that Godwin had satisfied himself that he had twenty-two feet head and fall; not that he had no more, or was 7 7 entitled to no more, or that there was an agreement of any kind whatever. My conclusion is, that no part of this testimony can be received, to vary, or alter, or contradict, the plain tenor of a written agreement or lease. It was contended, however, by one of the counsel of the complainants, that the evidence does not contradict the lease, or vary its terms, inasmuch as the lease is silent as to how much head and fall the party is entitled to. The lease grants to the lessee the one half of all that lot of land, beginning, &c., bounded on the south by the canal in Boudinot street, west by a lot occupied by Alvin Wilson, north by the Passaic river, and on the east by Crane’s lot; together with the privilege of taking water from the canal in Boudinot street equal to seventy-two square inches, for the use of a fulling-mill, &c.: to have and to hold, &c. By virtue of this grant, the lessee takes the lot from the canal to the river without any restriction whatever. If the lessors were to set up an agreement or understanding that the lessee was not to use the lot within twenty feet of the river, would it not be contrary to the tenor of the lease? Would it not imposea restriction by parol, where none existed by the covenant? So with regard to the water. The lessee is to have seventy-two square inches of water from the canal. If there were no restrictions in the lease, he might use the water for any lawful purpose j but by the lease it is to be used for milling purposes only. This was a restriction the company had a right to impose, and the lessee was at liberty to agree to it if he thought proper ; and having done so, he is bound by it. The use of the water is restricted in no other way by the terms of the lease. But if an agreement is set up, restricting the lessee to twenty-two feet head and fall of water, when by the lease he is entitled to twenty-six feet, are not the terms of the lease altered, and the party’s rights impaired ? Will he enjo3r what by the terms of the lease he is at liberty to enjoy ? The matter is too plain for controversy. Where there is a deed in — 402 — writing, says Lcl. Eldon, it will admit of no contract that is not part of the deed. Whether it adds to or deducts from the contract, it is impossible to introduce it on parol evidence: Irnham v. Child and al., 1 Ves.jr. 93. Upon the whole, I entertain no doubt that evidence, such as the complainants seek to offer, would vary the terms of the agreement, and is therefore inadmissible. I would observe, further, that if I should be mistaken in my conclusions on the questions of evidence, and if the whole of the testimony offered by the complainants was competent, it would not, in my opinion, vary the result. The bill charges that the knowledge and understanding of all the lessees was universal, that only a head and fall of twenty-two feet was granted. This should be fully and clearly proved. To vary the written agreement, the parol proof should be, if not so formal, at least as satisfactory to the mind of the court, as the evidence furnished by the deed. I do not think the allegation is satisfactorily sustained by the evidence. The map certainly does not prove it. In describing the property, it is said, “ each lot can have a head and fall of twenty-two feet.” Does this necessarily mean, it shall have that precise quantity, and no more? Does it mean any thing more, than that each lot, from its relative position to the canal at one end, and the river at the other, is capable of having on it a head and fall of twenty-two feet at least? Without deciding on the import of the description, it is sufficient to say, that if there be doubt, reasonable doubt, it is conclusive against the evidence ; it can have no effect as against the lease. And so with regard to the general understanding, as proved by the witnesses ; when the testimony is examined, it turns out to be simply this: that it was generally understood that the lots leased on that tier had a head and fall of twenty-two feet. Mr. Kinsey mentions this common report in his evidence, and says it originated from the fact that the engineers, in taking the level, reported that there would be a head and fall of that amount between the canal and the river. This is mere description ; and though the knowledge of it may be brought home to Godwin, it cannot amount to an agreement that will vary his rights under the lease. One of the old witnesses says, he considered himself — 403 — entitled to only twenty-two feet; but he does not say that this was a common understanding, and especially among those who took leases after the dam was swept away. It would be a source of regret to the court, if the decision in this case should result in any serious injury to the complainants ; but feeling cannot be suffered to have any operation in the administration of the law. The complainants will remember, that it grows out of their own act. They had an unquestionable right to the mill-seat below ; but the mill and dam being carried away, they had the same right to abandon it if they thought proper so to do. That such an abandonment has actually been made, is not necessary for me to decide ; but the fact, that a grant has been made by the society, of rights and privileges inconsistent with those here assumed by themselves, is sufficient evidence of such abandonment, in favour of the grantee, to protect him from the interference of this court, by injunction. Let the bill be dismissed, with costs.