61 A. 550 | N.H. | 1905
The description of the property conveyed by the deed, Winnipiseogee Lake Cotton and Woolen Manufacturing Company to Elisha Goodwin, dated November 29, 1854, construed *311
in Horne v. Hutchins,
After a further consideration by the superior court, the case was again transferred to this court, when it was held that the reservoir of which the mills at dam C are entitled to the beneficial enjoyment was the reservoir as it existed at the date of the Goodwin deed. At that time only four feet in depth of water could be drawn from it when full. Subsequently, the bed of the river connecting Smith and Crooked ponds, and the outlet of the latter pond, were lowered by the Lake Company so that four or five feet additional could be drawn. Accordingly, it was held that "privilege C has such a right in the use of the waters of the new reservoir as would be equivalent to its right in the use of the waters of the old reservoir, viz., the right to the reasonably necessary use of the first four feet of water, reckoning from the top of the dam, subject to the limitations in favor of the mills on the lower rivers." In the course of the opinion it was said: "While the owners of C cannot require the owners of A to draw down the water below the first four feet, for use at C, the owners of A cannot make use of *312
the water, either above or below the four-foot point, so as to interfere with the reasonable use of the first four feet of water by C, except for the mills on the lower rivers."
Upon a further effort to define and regulate the use of the water in the reservoir, in accordance with the rights of the parties as above determined, the superior court made the following findings and order in the present case, subject to an exception by the defendant Hutchins: The plaintiffs "are entitled to have the water discharged from the reservoir dam during ten hours of each working day, in sufficient quantity to keep dam C as nearly full as possible, so long as it can be done by not using more than the daily uniform or average flow of water from the first four feet of the reservoir. When the waters of the reservoir fall more than four feet below the top of the reservoir dam, the said Berrys are entitled to have said reservoir dam closed until the water shall accumulate in the reservoir in sufficient quantity to run the mills at dam C for an economical period. This is a reasonable and advantageous use of the first four feet of the water of the reservoir for all of the mills on Smith's river, considering their relative rights, for the Lake Company, and for the mills on the Winnipiseogee and Merrimack rivers, who are parties to this case, as it equalizes the flow of water from the first four feet of the reservoir and gives to all its daily uniform or average flow. The daily uniform or average flow of the first four feet of the reservoir, basing it upon the average year, is 130 cubic feet of water per second for ten hours per day; and the defendant Hutchins will hereafter discharge the water in accordance with this order until the same is modified or changed." The court further finds that a draft of water to that extent "has in the past, and will in the future, draw the water down to the four-foot point during portions of some years"; but, "taking one year with another," such draft or flow "will give all the parties the most water-power from the first four feet of the reservoir, and is the most advantageous use of the same."
Hutchins now owns the gristmill privilege on dam C described in Horne v. Hutchins,
The reservoir right appurtenant to the water privilege at dam C is common to the gristmill privilege, the Horne privilege, the sawmill privilege, and the leather-board mill privilege, into which the entire privilege is at present divided, and the gristmill's superior or preferential right attaches to its common right in the reservoir, as it does to the water actually flowing to dam C. Consequently, at any time there is only sufficient water in the reservoir to supply the gristmill according to its right, it would be entitled to that water in preference to the other mills. These rights, however, being common, each must be exercised reasonably, in view of the other rights. The plaintiffs are not entitled to have unreasonable drafts made upon the reservoir for their benefit, nor is Hutchins entitled to have the water unreasonably held in the *314 reservoir for the benefit of the gristmill. Any rule that can be established will no doubt operate temporarily in exceptional cases to the injury of one or the other of the conflicting interests. All that can be expected of a rule is that it shall operate generally so as to give all the common owners their respective rights. The true rule may not be found until pointed out by the experience of many years. If it shall be found that the draft of 130 cubic feet of water per second from the reservoir unreasonably exhausts it in ordinary years, so that generally there is not sufficient water left to supply the gristmill to the extent of its rights for considerable portions of the year, it would show that this draft was too large and should be reduced. The rights of the parties are so related to each other, and depend so much upon conditions of the weather and seasons which cannot be foreseen, that more satisfactory results can be obtained by an agreement of the parties than by any rule that can be formulated by the court; and as their rights are now fully understood, it is probable that they will have no further controversy respecting their enjoyment.
As appears from the quotation already made from Horne v. Hutchins,
By a contract between the defendant Hutchins and the Winnipiseogee Lake Cotton and Woolen Manufacturing Company, dated February 1, 1904, Hutchins bound himself to discharge from the reservoir not less than seventy nor more than ninety cubic feet of water a second, ten hours each working day during the period of one year from the date of the contract; and, upon request of the company in case of necessity, to discharge additional quantities, if there was sufficient water for the purpose without exhausting the reservoir. He attempts to justify the contract under the provision in the Goodwin deed, in behalf of mills located upon the Winnipiseogee and Merrimack rivers. He says that this provision, in legal effect, created an exception from the grant of water rights described in that deed; and that he, as the successor in title of the Lake Company through Brewster and Martin and other intermediate owners, owns the excepted right and is at liberty to make use of it as provided in the contract. Assuming that he is the owner of this right, it or any of his other rights in the reservoir does not authorize him to make the contract in question. The right excepted or reserved — it is immaterial to the present inquiry whether it was an exception or reservation — differs essentially from the right attempted to be exercised by means of the contract. In the exercise of that right, the Lake Company *316
was not at liberty, nor is Hutchins as its successor in title at liberty, to consider the use of water at dam C as interfering with the use of the reservoir for supplying water to the mills upon the lower rivers, without regard to the necessities of the mills. The right is not to be exercised arbitrarily whenever the one entitled to exercise it thinks proper or sees fit, but only when there is a reasonable necessity for its exercise, for the advantageous use of the reservoir, as a reservoir for the lower mills. The rights in the reservoir granted for the benefit of the water privileges at dam C, and the rights reserved or excepted for the benefit of the lower mills, are interdependent, and each must be exercised reasonably, having regard to the other, and so that the other will be injured as little as possible. It is found in this case that the use of the reservoir prescribed by the order is "a reasonable and advantageous use of the first four feet of the water of the reservoir for all of the mills on Smith's river, considering their relative rights, for the Lake Company, and for the mills on the Winnipiseogee and Merrimack rivers, who are parties to this case, as it equalizes the flow of the water from the first four feet of the reservoir and gives to all its daily uniform or average flow." The modification of the order above suggested cannot affect this finding. Indeed, it is not easy to perceive how the mills on the lower rivers can be injured by the order, since all the water discharged from the reservoir must flow into Lake Winnipiseogee, the immediate reservoir of those mills, and be temporarily impounded there, especially if the discharge from the latter reservoir is 250 cubic feet per second, as it would seem that it is from Winnipiseogee etc. Co. v. Gilford,
The order of the superior court should be modified to the extent suggested in this opinion, and not otherwise. All other exceptions are overruled.
Case discharged.
YOUNG, J., did not sit: the others concurred.