Jackson Milling Co. v. Chandos

.Winslow, J. The plaintiff corporation owns the paramount right to draw from the canal in question 2,000 inches of water under an eleven-foot head. The defendants own the canal and water-power subject to the plaintiff’s right to use its 2,000 inches of water at the head named, and the main question in controversy is as to the meaning, of the — 444 — term “ 2,000 inches of water,” as used, in the deeds under which plaintiff claims. It will be seen that the question at issue is substantially the same as one of the questions involved in the case of Jamesville Cotton Mills v. Ford, ante, p. 416, the only difference in the language of the grants being that in the Janes-ville Gase the words used were “square inches of water,” while in the present cases the words were simply “ inches of water.” The difference is not important, because it was practically conceded by counsel on both sides in the present case that the term “inches” must be construed as “square inches,” -because it is plain that “lineal” inches would be utterly insensible. The plaintiff’s contention here is the same as the conteution of defendants in the Janes-ville Gase, namely, that the term “ inch of water ” had at the time of the grants in this case a definite and fixed meaning among mill-men and hydraulic engineers, to wit, “a stream of water having a cross-section area at right angles with its flow of one square inch, and moving with a velocity due to the given head.” This is what we have called in the Janesville Gase the “ theoretical inch.” It appears that the theoretical velocity due to a head of eleven feet is 26.60 feet per second, and that a stream of 2,000 theoretical square inches at that head delivers 22,166 cubic feet of water per minute. On the other hand, the defendants claim that there was no such fixed technical meaning to the term at the time the grants were made, and that the term “ inch of water ” must be construed as the facts and circumstances show that the parties understood and meant at the time; and defendants contend that such facts and circumstances clearly show that the parties meant'by the term “inch of water” so much water “ as would be discharged from an ordinary flume through an opening one inch square, cut in the side thereof, without adjutage, under an eleven-foot head, while — 445 — said water is retarded by the actual operation of wheels in motion doing ordinary work as water wheels running a mill.” Under this definition defendants claim that the plaintiff’s grant of 2,000 inches means a flow of about 5,000 cubic feet of water per minute. This is what we have called in the Janesville Oase the “practical square inch,” with an additional element, namely, the retardation of the flow caused by the propulsion of the wheels and machinery of a mill doing ordinary work. Without this element, the practical inch amounts (as stated in the Janesville Oase) to about sixty-two per cent, of the theoretical inch. The defendants claim that the retardation caused by such wheels as were in use at the time of the first grant in this case amounted to more than fifty per cent., and thus arrives at the conclusion that plaintiff is only entitled to a flow of about 5,000 cubic feet per minute. The circuit court adopted neither view in its entirety, but found that the original deed of 2,000 inches of water, under which plaintiff claims, conveyed “a solid vein of water, having a cross-sectión area of 2,000 inches at right angles with the thread of the current, flowing with a velocity due to the head of eleven feet, as retarded by machinery in actual operation, and such machinery as was in use at the time of making,” and that such retardation was fifty per cent. This conclusion gave the plaintiff a stream delivering 11,083 cubic feet of water per minute, being just one half what plaintiff claims, and a little more than double what the defendants claim that plaintiff is entitled to. It will be seen that the difference between the plaintiff’s rights if the grant be construed according to the contention of the plaintiff, and its rights if the same grant be construed according to the contention of the defendants, is very considerable, and of the greatest importance in this case, because the total capacity of the canal at the time the first grant was made in 1860 was not more than 25,000 cubic — 446 — feet per minute when the water flowed at its proper velocity. It is certain that the term “ inch of water ” does not, in the ordinary and usual sense of the words used, convey to the mind any idea of volume. We say now, as we said in the Janesville Case, that if the term had a fixed and definite meaning among hydraulic engineers and mill-men at the time it was used, such meaning would prevail, notwithstanding the fact that people ordinarily did not know of such meaning, or even that the parties to the deeds themselves did not know of «it. Parties cannot use technical terms with a fixed meaning, and then disclaim such meaning ; but when such alleged technical meaning is an arbitrary one, and not one which the word or words would naturally import, it must clearly appear that the acquired or technical meaning was not the subject of substantial dispute or doubt; that it was well settled and understood, at least among the members of the profession or trade which is supposed to use the term in such technical sense. There is a greater volume of evidence in this case upon the subject of the alleged technifcal or fixed meaning of the term “inch of water” than there was in the Janesville Case, and we have carefully considered it, but the conclusion which we have reached is the same as that reached in the Jcmesvitte Case. That, conclusion is that the term “ inch of water ” had not acquired in 1860, nor even at the time of the latest grant in this case, any fixed, certain, and technical meaning. The plaintiff’s own evidence forces this conviction upon our minds, and we shall briefly here refer to some of that evidence from which we draw this conclusion. The plaintiff called, as an expert, one J. P. Francis, of Lowell, Mass., who was admitted by both sides to be an expert hydraulic engineer of great experience and of the-highest standing. Mr. Francis was examined at length upon the subject of the meaning of the term “inch of — 447 — water,” and, among other things, he said: “ The term has a technical meaning among water-wheel makers and venders, as I gather from their publications, at least a great many of them that I have examined, and with them it means what engineers know or understand as the theoretical discharge of an orifice of 2,000 square inches under eleven feet head. It is a mode of measuring not in use generally in the lai'ger water-powers of New England, and -without being ex-plained by a technical meaning I believe it would have no signification.” Again he says, referring to the alleged technical definition of an “ inch of water,” “ I don’t look upon it as a scientific definition of water at all, but it is something that has grown up among the wheel builders and makers to indicate the power of their wheels, but I don’t think it is generally known in the scientific world. I presume a great many engineers have picked it up as I have. Take the world through among scientific men, I think they could give it no signification.” Edward Ruger, an hydraulic engineer of considerable experience, was also called as a witness by the plaintiff, and in reply to the question, “ Don’t all men who are educated in hydraulics understand it [an inch of water] practically means the same thing? ” he answered: “ I don’t know as they do. I should say that some would probably think it meant what would pass through an inch hole, and some not.” It further appeared from the evidence that at a convention of engineers held a few years since at Minneapolis, where about 150 engineers were present, the question as to what constituted an “ inch of water ” was discussed, without any definite conclusion being reached; some claiming one meaning and some another. It was further shown, by the evidence of practical mill-men interested in water-powers from an early day at Menasha, Neenah, and Appleton, that the alleged technical meaning had never been — 448 — known in that vicinity, and there is' absolutely nothing in the case to show that either the original grantors or the original grantees of the powers in question knew or hacl any idea of such a definition of the term “ inch of water.” While on this subject, it is instructive to note that the last edition of Webster’s International Dictionary, published in 1892, defines an “ inch of water ” as follows: “ A unit of measure of quantity of water, being the quantity which will flow through an orifice one inch square, or a circular orifice one inch in diameter, in a vertical surface, under a stated constant head.” Plaintiff relied much upon the rules and definitions stated in certain books, most of which were advertisements of turbine water-wheel makers, issued within the past ten or fifteen years. One book, which was much relied upon by the plaintiff, is entitled ¡< The Miller, Millwright, and Mill Furnisher,” by Robert Grimshaw, published at New York in 1882. This book, indeed, gives the definition of a “ square inch of water” in accordance with the plaintiff’s contention, that is, the theoretical inch, but in connection therewith there is also the following very significant statement: “ Correspondence indicates' a frequent misapprehension of the meaning of the term ‘ square inches of water vented.’ Some think that, in a wheel said to use 100 square inches of water, it is meant that the entire area of the chute apertures measures 100 square inches,but others think the meaning to be that the entire area of the discharge apertures is 100 square inches. Neither of these views is correct.” The author then proceeds to give the definition of a theoretical square inch of water. This shows, as we think, very conclusively that even in 1882 there was not a certain, definite, technical pieaning attached to the words “ square inch of water.'” Two of the wheel books so introduced by the plaintiff contain substantially the same statements as given by Mr. Grimshaw. The Yictor Turbine Wheel Book, pub — 449 — lished in 1887, states: “ Our correspondence indicates a frequent misapprehension of the meaning of the term ‘square inches of water.’ ” The Stevenson Turbine Wheel Book, published in 1869, contains the following similar statement with regard to the term “ inches of water: ” “ This term has been the innocent cause of much misunderstanding between the manufacturers and purchasers of turbine water wheels. Some parties consider it the area of inlet to the wheel, and some think it to be the area of the discharge openings of the wheel, and some think it is the area of a body of water passing over a weir; but all of these are erroneous.” We shall spend no further time citing from the testimony, but shall simply say that the conclusion seems irresistible to our minds that the term “ inch of water ” has not acquired any fixed technical meaning which must control when used in a grant, although the testimony shows that the tendency among wheel venders and mill-men for some years has been and is to, attach to it the meaning of the theoretical inch; but it does not appear that such theoretical arbitrary meaning has yet crystallized so as to be controlling, like the meaning of the term “ foot of lumber ” or other arbitrary terms which are known and recognized without dispute. As we have before said, the term “ inch of water ” expresses no idea of volume to the common mind; neither the lineal inch nor superficial inch imports volume; but we know that the parties who used the expression in these deeds had some definite purpose in view; we know that they attached some meaning to the words they used; and it is the duty of the court to find out, in view of the fact that various and different meanings may be given to it, what the meaning attached to it by the parties in fact was. In prosecuting this inquiry it becomes necessary, under familiar principles, to consider the circumstances surrounding the parties at the time the original grant was made. It was said in the — 450 — Janesville Gase: “ Doubtless the circumstances surrounding the parties at the time the grants were made, the condition of the race, the size of the apertures through which water was drawn, the capacities of the wheels, and many other facts tending to throw light on the apparent intention of the parties at or about the time the deeds were made, should be considered upon the question. Ganson v. Madigan, 15 Wis. 144.” We shall therefore proceed to notice some of the prominent facts which surrounded the original grant of water, and which must, we think, be considered in determining the meaning of the term “ inch of water ” in this case. The water-power in question is formed by a series of islands connected by dams in the Wisconsin river, by means of which a portion of the water of the river is turned into an artificial canal, from which both plaintiff and defendant draw their water. This canal and the 'dams were in process of construction by Garrison and Weller at the time the deed of October 5, 1860, from Harris to W.eller -was executed. Some time previous to the execution of the deed, Garrison, Jackson & Bensley had made a written contract with Weller to convey to him the mill site (now owned by plaintiff), together with “ the right to draw and use from the race sufficient water, properly applied, to run four run of millstones, or water sufficient to drive the necessary machinery for a grist-mill of th e capacity of four run of stones; ” also the right to use the lands below for a tailrace. In this same contract Weller agreed to construct such a mill, and to pay one fourth part of the cost of enlarging the race, and one fourth of the cost of building and maintaining the dams and locks above the race, “ in order to turn sufficient water in said race to propel said mill and the saio-mill now m course of erection by Garrison, Jackson & Bensley.” It is found by the court, as the fact undoubtedly was, that the deed of October 5, 1860, conveying 2,000 inches of water, was made in fulfilment of said contract, without new consideration. — 451 — "When this deed was made, "Weller executed a bond or contract back to Harris, agreeing to build and maintain one fourth part of canal, dams, and locks substantially as he had agreed in the previous contract, and providing for a forfeiture of his title in case of failure. All subsequent deeds from Weller to the plaintiff convey title expressly subject to the conditions and obligations imposed by this bond. It appears that the capacity of this canal 'from 1860 up to about 1886, when it was enlarged, was only about 23,000 to 25,000 cubic feet of water per minute, when the water flowed at its proper velocity. All these facts immediately surrounding the original grant of water to Weller negative very conclusively the idea that the parties intended to convey 2,000 theoretical square inches of water. As we have seen, 2,000 theoretical square inches means a flow of 22,166 cubic feet of water per minute. This amount would practically take the entire supply of water which the canal was capable of carrying. The grantors had a saw-mill which they intended to operate with water drawn from this canal, which was of a size and capacity to draw at least twice as much water as Weller’s grist-mill. Sane men would scarcely convey their entire available water-power, which they were building largely for their own use, in consideration of an agreement to pay one fourth part only of the expense- of maintenance. But it is said that the terms of the contract preceding the deed were merged in the deed, and that the contract cannot be received in evidence or considered for the purpose of modifying or changing the terms of the deed. Doubtless this is true. But the purpose of the testimony here is not to modify or change the terms of the deed, but to construe them, to interpret them, and ascertain their correct meaning. Parol evidence of surrounding circumstances is not admissible for the purpose of changing the — 452 — terms of a written contract, but where the terms of the contract are doubtful, and capable of several interpretations, it is well settled that evidence of attendant circumstances is admissible to enable the court to place itself in the situation of the parties, for the purpose of construing such doubtful terms. No reason is perceived why the facts that the original contract was made and in existence, and that the deed was simply made in fulfilment of it, may not be shown as attendant circumstances, as well as facts resting purely in parol. No clear understanding of the position and relations of the parties towards each other could be obtained if these facts' were excluded from the evidence. There are other facts in evidence, such as the size of the conduit or trunk built to convey water from the canal to the mill, the amount of water which was actually used by Weller and his grantees for many years, the prices which have been paid for the mill and power at the various sales,— all of which tend, with greater or less strength, to negative the idea that the theoretical inch of water was ever contemplated by the parties to any of the deeds as the measure of the grants. The attending circumstances which we have so far considered may be called' simply negative in their character. While they tend to show that the parties did not use the term “ inch of water ” as meaning a theoretical inch, they do not, perhaps, indicate affirmatively what meaning they attached to the term. The question recurs, then, whether there is testimony of attendant circumstances which tends to show definitely what the understanding of the parties was as to the meaning of the term they used. We know they had a definite purpose in using the words they did use, and, the words not having a fixed meaning, the question is. What .was the meaning attached to them by the parties V The court found, as the facts evidently were, that Weller, — 453 — in constructing bis flouring mill, built a flume leading from the canal to bis mill, wbieh led into a flume of larger size immediately under bis mill, into which last-named flume he inserted three spouts, leading to three wheels, and constructed openings for the insertion of two other spouts of the same size to lead to two other wheels; that the three spouts so inserted and leading to the wheels were each twenty-two inches by eighteen inches gateage measurement. This flume and these openings were made at about the time of the execution of the deed from Harris to Weller, and they remained intact until long after Weller sold the mill, in 1874. The openings so provided for under the deed of 2,000 inches of water aggregate 1,980 square inches. Now, if this result was purely chance, it certainly was very remarkable. Here was the grantee preparing to utilize a grant of 2,000 inches of water, and with ■ the knowledge, or at least without objection on the part, of his grantor, he prepares openings for the passage of the water granted, which aggregate in superficial area of aperture 1,980 inches. It -is very manifest to us that this is not to be attributed to mere accident, but to design. We have no hesitation in holding on this fact that it was the manifest design of both parties that the water granted should be measured by the superficial area of the openings. There has been no actual measurement of the water continuing for years, in this case, as there was in the Janesville Case, and in the absence of such evidence we are fully persuaded that the preparation of the openings with a superficial area within a few inches of the grant must be considered a controlling circumstance in determining the proper construction of the grant. It is a circumstance which partakes of the nature both of an attendant fact and a practical construction by the parties of the grant. It is a practical demonstration that the parties meant by the term “ 2,000 inches ” the amount of water which would be discharged through 2,000 superficial inches of aperature, with — 454 — ‘out adjutage, in the side of a flume, at a head of eleven '•feet. ‘ i We cannot accept the defendants’ theory that the parties meant to add to this meaning an element of uncertainty, such as the retardation of the flow caused by machinery doing the ordinary work of a grist-mill. This retardation must be variable, depending on the kind of wheels used, the perfection of machinery, and the amount of work being done. It would be a constantly changing quantity. No witness could accurately testify to the amount of such retardation. We find nothing in the evidence that shows to our minds that the parties intended to add to the grant such an element of uncertainty, and we shall not do so. Doubtless the parties did not accurately know the amount of water which would be discharged through an aperture of 2,000 square inches at an eleven-foot head. Probably they would have been surprised to know that so great a volume of water would be discharged, but that they intended to so measure the volume we cannot doubt, and the fact that they did not know that the discharge would be so great cannot now affect the construction. We hold that the grants of 2,000 inches of water under an eleven-foot head, as contained in the deeds in this action, under the evidence of the attendant circumstances, mean so much water as will, under a head of eleven feet, flow through a simple orifice of 2,000 square inches area in the side of a flume. This is a definite and certain amount. It is sixty-two per cent, of the theoretical discharge due the head. The theoretical discharge due the head is 22,166 cubic feet per minute; therefore the discharge to which plaintiff is entitled under its deeds is 13,743 cubic feet per minute, at a head of eleven feet. There is no question as to innocent purchasers here. The plaintiff was charged with knowledge when it purchased that the term “inch of water” had not a fixed meaning, and it took its deed knowing that the term must — 455 — be construed. The judgment of the United States circuit court which denied reformation of the original deed is of no moment. No reformation is attempted by either party in this action. We have simply construed and found the meaning of the terms of the deed. We have not changed those terms. By the Court.— Judgment affirmed upon defendants’ appeal, and reversed upon plaintiff’s appeal, and cause remanded with directions to render judgment for plaintiff in accordance with this opinion. Cassoday and Pinney, JJ., took no part.