61 N.J.L. 32 | N.J. | 1897
The opinion of the court was delivered by
The first question certified is whether the plaintiffs are entitled to more than nominal damages for the diversion of the water from the Pequannock river. The defendant contends that, as against the company diverting the waters of the stream above the dam, the Butler company has not such property in the stream as will enable it to have compensation for such diversion, and that the damages recoverable in this ease should be merely nominal. To maintain this contention the defendant relies on several cases in the English
It will be observed that in each of these cases a property right was recognized in the licensee, which was valid, at least against the grantor, and that the actions were by a riparian-proprietor or against a riparian proprietor, against whose rights
But it is unnecessary to discuss this subject further. The right the plaintiffs obtained to the use of the waters of the stream in virtue of the grant from the Newbrough company is undeniably property. . As such, under our constitution, they cannot be deprived of it except on compensation made. This principle applies whether the water taken or the injury done to the mill property by diverting the waters from the mill be considered. The destruction of private property, either total or partial, or the diminution of its value, by the act of the government directly and not merely incidentally affecting it, which deprives the owner of the ordinary use of it, is a taking, within the constitutional provision, which can be effected only under the right of eminent domain, subject to the constitutional limitation of making just compensation. Trenton Water Power Co. v. Raff, 7 Vroom 335, 343. Indeed, the statute under which the water company is proceeding deals with water rights as property, and as property distinct from land. The second section of the statute provides that in case of any disagreement between the city and the water company, or the owner of any other land or water rights which may be required for the said purposes or affected by any operation connected therewith, as to the amount of compensation to be made to said water company or to such owner, the Circuit Court shall, on application of either party, appoint commissioners to examine the real estate and personal property of said water company, or any other land or water rights and estimate the value thereof or damages sustained thereby. By the third section it is made the duty of the jury, in case of an
The second question contained in the certificate is: “Should the damages be bas$d on the condition of the dam and raceway in 1873 ? (a) Had the plaintiffs the right to change the raceway so that it would draw more water through it than in 1873? (b) Have the plaintiffs a right to obstruct or use water from the raceway or flume for purposes other than power? (c) Have the plaintiffs a right to arrest the flow of the water through the raceway in its progress down to the Tyndall property ? ”
The trial judge, in the construction of the deed from the Newbrough company, under which the plaintiffs claim title, held that the title of the plaintiffs in respect to the diversion of water from the stream was limited to the height of the dam that was in the river in 1873—the structure and the efficient effect of the dam as it was at that time. The discussion of counsel was directed to the last branch of the proposition above set out—as to the right of the plaintiffs to change the raceway so that it would draw more water through it than in 1873.
By a deed dated February 12th, 1873, the Newbrough company conveyed to Richard B. Tyndall the premises below what is now the mill property of the Butler Hard Rubber Company, consisting of the tract on which the lower mill was located. That deed, after the description of the granted premises, contained the following provisions: “And the said party of the first part, for itself, for its successors and assigns, doth hereby grant, assign and convey to the said party of the second
The words “joint right” used in this deed express the purpose of the grantor to give to these parties an equal right to the water in the stream, to be used successively, the Newbrough company using it first for the purposes of their mill, and after its discharge into the tailrace then to be used at the Tyndall mill. This construction is necessary to give effect to the intention of the parties, having regard to the provisions in the deed and the location of the waterways as delineated on the map. By the terms of the deed either party was allowed to repair the dam, and the right was conferred upon each party to use the raceway, with the right to enlarge and repair the same. The difference in language with respect to the dam and that with respect to the raceway is of importance in this case. The right conferred and reserved was to repair or rebuild the dam; the right of each party with respect to the raceway was to repair or enlarge the raceway.
By a deed dated July 24th, 1873, the Newbrough company conveyed to Rosenthal and Strauss the tract of land on which the upper mill had been erected, containing about fifteen acres. The description in the deed was of the plot of ground on which the buildings of the Butler Hard Rubber Company are situate, and also the strip of land on which the raceway was situate, extending up the river to a point distant seven and five-tenths feet from the southwest corner of the stone abutment at the gatehouse at the upper end of the canal, marked “E” on the map: “Beginning, &c., together with all the rights of the dam and of all flowage possessed by the said party of the first part, subject, however, in all respects to all the joint rights, privileges, easements, conditions and covenants affecting the dam, the canal and the water in the Pequannock river, as expressed and contained in a certain
When the Newbrough company conveyed the Tyndall mill, that company remained the owner of the upper mill. Looking merely at the covenants and conditions in the Tyndall deed, the Newbrough company had in common with Tyndall the right to repair or rebuild the dam and to repair and enlarge the raceway. But the rights of the Newbrough company were not limited by the prescriptions in the Tyndall deed. The company remained the owner in fee of the upper mill and of the raceway, dam and water-power, with all the right to alter and enlarge that belonged to the owner of the fee; provided, only, that in making such changes the rights of
The contention of the defendants is that Rosenthal and Strauss were deprived of the right to enlarge the raceway, and restricted to its venting capacity, as it was in 1873, by the provision contained in their deed which allowed the Newbrough company to build and erect a dam across the river, below the dam that was on the premises in 1873, and to flow the lands granted to Rosenthal and Strauss to within five feet from the top of the dam. The conveyance by the Newbrough company to Rosenthal and Strauss was expressly of “ all the rights of the dam and of all the flowage possessed by the said party of the first part,” subject only to the conditions and covenants affecting the dam and raceway and the water contained in the Tyndall deed, and the right of the railway company to take water from the canal to the tank to supply their locomotives. In virtue of these conveyances and of the stipulations contained therein, the right of Rosenthal and Strauss and those who succeeded to their title to widen and enlarge the raceway is undoubted. The Newbrough company, in virtue of the right reserved to erect a dam below the dam conveyed to Rosenthal and Strauss indicated no purpose to interfere with the waters or water rights of either the owners of the Butler mill or the owners of the Tyndall mill. The dam in question was never built, and, if built, would only be available to receive the water which might be discharged over the dam. If there was any doubt as to the construction of this deed, the rule of construction that the terms of the grant should be construed most strongly against the grantor will
The other two subdivisions embraced in this question (a and b) can be answered shortly. The plaintiffs had no right to use the water from the raceway and flume for any other purposes than power, nor a right to arrest the flow of the water through the raceway in its progress down to the Tyndall property, except as such an interference with the flow of water or its use was justified by the Tyndall deed. But the remedy for the invasion of any right of Tyndall’s would be by action, or some proceeding by the owners of the Tyndall property to restore the delivery of the water from the tailrace in the manner stipulated for in the Tyndall deed. There was evidence tending to show that the plaintiffs, by means of a six-inch pipe, had carried from the headrace water for use for mechanical purposes in the mill, not as water-power. If this use of the water interfered with the right of Tyndall, the redress for such an injury would be by suit by Tyndall or those who succeeded to his estate. Admitting that the acts of the plaintiffs in this respect were unlawful, and the company made itself liable to an action at the suit of the owners of the Tyndall mill, such an unlawful act did not carry with it the forfeiture of the plaintiffs’ rights in their water-power. The plaintiffs had been accustomed to close the gates leading to their mill in order to allow the raceway to fill up, thereby arresting the flow of the water and increasing the power derived therefrom in their mill. This custom was not objected to by the owners of the Tyndall mill, probably because it was for the advantage of both parties in storing water for use in both mills. The deed to Tyndall authorized the grantee to construct a side channel or flume from the raceway to the tailrace,
The third and fourth questions certified will be considered together. They are as follows :
“ 3. Should the jury have been instructed that the evidence of the cost of installing and maintaining and substituting a steam plant with which to run machinery heretofore operated by water-power, was competent as a means of arriving at or determining the difference in market value of the property on account of the diversion, according to the terms of the charge?
“ 4. Should the jury have been allowed, in estimating the difference in market value of the plaintiffs’ property by reason of the diversion, to consider the theory of supplying the power by other means, as directed by the court in the charge ? ”
The trial judge then referred to the extent and efficiency of the water-power when the proceedings to condemn were taken. “The plaintiffs, at that time, had two wheels, a thirty-six-inch wheel, with a ventage of twenty-four millions of gallons in twenty-four hours, and a forty-three-inch wheel,
After referring to the evidence with respect to the changes in the water-power from 1869 to 1872, the trial judge said: “ Now, gentlemen, when you have ascertained the extent and the value of the plaintiffs’ water-power before the diversion, then you advance another step, and that is to ascertain the extent to which the plaintiffs’ property was, in the language of the statute, ‘ affected ’ by the diversion of this water; in other words, the nature and extent of the injury done, and the character and value of what was left. In order to determine that question, the first consideration is the extent of the legal right acquired by the city in these condemnation proceedings. What have they taken, and what have they a right to take? In order to answer that question, we go back to the issue that is made in this case, and I read this extract: ‘ The petitioners [that is, the city] limited and restricted their application for their right to condemn to take in such proceedings, as follows: the right to divert and take from the Pequannock river, at the dam of the Macopin intake reservoir, as now located and constructed, as shown on the map produced, so much water as
“The theory on which this case has been presented, and on which I propose to present it, is that of supplying by other means the power which is taken away by the diversion of this water.”
The evidence shows that after 1873 the mill on the plaintiffs’ premises had been very much enlarged, and new and expensive machinery, not only for manufacturing purposes, but for additional power, had been set up, increasing the market value of the plaintiffs’ premises, independent of the water-power, until it reached a large sum. In 1895, a double-cylinder Corliss engine rated at five hundred horse-power was set up for use in driving machinery, part of which had been
A certificate in conformity with this opinion will be sent to the Circuit Court.