Blanchard v. Doering

| Wis. | Jan 15, 1867

Cole, J.

This appeal must turn entirely upon the construction which is placed upon the different conveyances. The language in each one of the deeds is essentially the same, for estimating the quantity of water intended to be granted. And it may be stated to be a grant of 150 “ square inches of water for propelling machinery, to be furnished by the said parties of the first part ” on the premises, conveyed “ in a flume or race,” and to be taken by the parties of the second part, “ at the sic^ thereof,” “ at an opening or openings between the bottom and top of the same; provided that no more water be taken at said opening or openings than would be discharged at a point as low as the surface of the river ” at said premises “ by an aperture of 150 square inches.” The question is: What is convyeed by such language ? Is it the right to use as much water as would flow into open space through an aperture of 150 square inches as low down as the surface of the river, without reference to the manner of taking it; or is it the right to take at said level as much water as will flow through an aperture of 150 square inches ? We are of the opinion that the manifest intent of the grants is to convey the right to draw all the water which will naturally flow through an opening of 150 square inches at the side of the main race or flume as low as the surface of the river.

It was, of course, competent for the parties to prescribe the manner in which the quantity of water should be ascertained and measured ; and they seem to have done so in clear and un-ambigous terms. It is all the water which may be discharged through an aperture in the side of the flume of 150 square inches, at a point as low as the surface of the river. It is clear that the parties have provided that the quantity of water is to be ascertained and measured in this manner, that is, by an aperture of this size made at the prescribed point.

The circuit court held that the grants did not limit the defendants to the right of taking all the water which would flow through an opening in the side of the race of 150 square inches as low as the surface of the river, but that they might draw as much water as would run into open space through an opening of that area, the water to be measured in defendants’ tail race or discharge of their mill. But we are unable to concur in this construction of the deeds. Eor, to our minds, it is manifest that the parties themselves have clearly expressed the particular-manner the volume of water drawn should be ascertained and determined; and it was what would flow through an aperture of the size mentioned in the side of the main race or flume. And as they have prescribed the mode of measuring the quantity of water granted, none other can properly be resorted to.

It appears that the defendants have been accustomed to receive the water used at their mill from the main race through a side flume of about sixty feet in length, of the same hight and depth throughout as the main race. The water was discharged from openings or pent-stocks in the side race into and upon an American Turbine water wheel. The person who put in this wheel, Mr. A. E. Ordway, who is conceded to be an able and intelligent mill-wright, well versed in the science of hydraulics, says that the wheel was so gauged and constructed that it would discharge only about one hundred and fifty inches of water, when making seventy or eighty revolutions a minute, the velocity necessary to do good work. The defendants claim that they have the right to use the water in this manner, the quantity used being ascertained by measurement at the tail-race. But this method of measurement is clearly inadmissible.

Our construction of these grants is strongly sustained by the cases of Drummond v. Hinkley, 30 Maine, 433; Norris v. Showerman, 2 Doug. (Mich.), 16; The Schuylkill Navigation Co. v. Moore, 2 Whart. (Pa.), 477. See also Dewey v. Bellows, 9 N. H., 282; Mandeville v. Comstock, 9 Mich., 536" court="Mich." date_filed="1862-01-20" href="https://app.midpage.ai/document/mandeville-v-comstock-6632607?utm_source=webapp" opinion_id="6632607">9 Mich., 536; Soc’y for Estab. Manufactures v. Holsman, 1 Halstead Ch., 126.

That portion of the injunctional order appealed from must be reversed, and the cause remanded for further proceedings in accordance with this decision.

By the Court. — Order reversed.