Emery v. Common Council

Campbell, J. Plaintiff sued defendants for using more water than they were entitled to under the title vested in them in the water-power of Rock river. The only important question is whether defendants owned an absolute or only a contingent interest. Plaintiff claims that defendants have no interest which is not subject to his prior claim to use the entire power for his mill, if wanted for the use of the equivalent -of four run of stone. Defendants claim an absolute right .to one-eighth of the power, and a qualified right to still more, if the latter is not needed by plaintiff. I think the whole question turns on the meaning of the deed, and that it can make no difference what plaintiff has done in enlarging his improvement; and it is equally independent of any supposed policy or expectation of plaintiff or his grantors. There was nothing to prevent them from granting as much of their property as they saw fit, and it can make no difference whether ex post facto wisdom would have prevented the contract, had it been anticipated. The deed in question was a grant of property needing [443] some power to run it successfully. After conveying the land, it proceeds as follows: “Together with the undivided one-eighth part of the land flowed, or subject to be flowed, by said pond, for which the parties of the first part have a title in fee-simple, together with the undivided one-eighth of all the interest the parties of the first part have in and to other lands now flowed by said pond; and it is understood and agreed by the parties that if the undivided one-eighth of the Rock-river water-power, which is hereby intended to be conveyed, does not amount to 225 inches of water, then the party of the second part, his heirs and devisees, shall have the right to use enough water from the said pond to make 225 inches, or a stream of water filling an opening 15 inches square, and the same to be used under a head of eight feet, upon the above-described premises, according to the following provisions, that is to say: The parties of the first part, for themselves, their heirs and assigns, reserve a sufficient amount of water, properly used, to drive four run of French buhr mill-stones, with all necessary' machinery, first; and the party of the second part, his heirs and assigns, is to have the next use of the water, to the amount above specified, together with a proper use of the river below the bridge for tail water.'” The deed proceeded to provide that in case of any break in the dam, or necessary repairs thereto, the grantors should be at seven-eighths, and the grantee at one-eighth, of the expense, except such repairs as are needed in the separate races and appurtenances of each property, which are to be made by the owners. The grantors reserve the right to raise the dam two feet. It will be observed that the liability of the grantee to bear one-eighth of the expense of the repairs is absolute, and not contingent. And if plaintiff’s contention is correct, this duty will exist perpetually, although he should continually use all the water in the river, which it needs no testimony to show will always be diminishing, and not increasing. The question is not one which can be made very much clearer by any reasoning process. There can be no doubt [444] that the deed conveys absolutely one-eighth of all the land flowed, or subject to flowage, which would, according to all rules of construction, include the water on such land. But, to remove any cavil on this head, the deed goes on to speak of the “undivided one-eighth of the Rock-river water-power, which is hereby intended to be conveyed.” This language is perfectly jflain, and can bear but one construction, which is that the plaintiff’s grantors had parted absolutely with one-eighth of their water-power. The only other provision is one which under certain circumstances allows a qualified use of enough of plaintiff’s own retained seven-eighths to make up 225 inches under an 8-foot head, if plaintiff can spare it, without interfering with his own mill. It is not in accordance with the context, or the general rules of language, to make the plaintiff’s reservation of enough water to run his mill refer to any more than the water which was charged with the contingent use of the water requisite to make up 225 inches. I do not think that the subsequent demand of plaintiff’s mill for more water deserves any more consideration than the needs of the factory, or was any more within the intention of the parties. It appears from the deed itself that seven-eighths of the water would, presumably, supply all plaintiff’s .needs, with a possible surplus. It is equally clear that the grant was for a concern requiring some waterpower, for which an absolute provision of one-eighth was made, with a contingent right to use more. It would not be a reasonable inference that this could, under any circumstances, be deprived of water altogether; and it would have been an absurd undertaking to keep property in repair which the plaintiff could prevent defendants from using at all. I am unable to see any ambiguity in the grant by its terms, or any created by its context. I think defendants [445] were rightfully in the use of the power to the extent of one-eighth, and that the holding otherwise was erroneous. Morse and Long, JJ., concurred with Campbell, J.