38 Me. 289 | Me. | 1854
— It is admitted, that the defendant planked up the flume, as alleged in the plaintiff’s writ, and thereby the water was diverted from the plaintiff’s machine shop; and that this was done under the authority of Henry Matthews and others, who owned the grist-mill and privilege at the dam, subject to the plaintiff’s rights under a deed from William R. French to him, dated August 21, 1851, which in addition to a parcel of land connected with a mill-site, described therein, grants, “ likewise a water privilege for tanning purposes, in all its various branches, which privilege is to come out of the grist-mill dam, (one twelfth part of said dam to be kept in repair by said Deslion.”)
From these deeds, and the admissions in the case, no doubt can be entertained that Mark Blaisdell was the source of title of both parties; and that the right which is in dispute of the plaintiff, “ to a water privilege, for tanning pur
In giving a construction to the part of the deed touching the water privilege, it is proper, in the language of Judge Sewall, in Sumner v. Williams, 8 Mass. 162, “that the situation of the parties, the subject matter of their transactions, and the whole language of their instrument, should, have operation in settling thé legal effect of their contract.”
At the time of the deed from Mark Blaisdell to Henry XL Smith, the grantor was in possession of the land, and the mill privilege; and thereon in operation was a grist-mill, with two run of stones. Smith was a tanner, and wished to obtain a privilege on the same stream on which to erect a tannery, and carry on his business with the aid of water power, so far as was necessary or desirable. And it would seem, that it was supposed, that he would need so much of the water, and at such seasons of the year, as to make it proper that he should be at the expense of keeping the dam in repair, in the proportion that his expected use therein would bear to the whole use. After the purchase, he put in operation his woi'ks connected with the tannery, and continued them till he disposed of his interest.
The principal question is, what intention of the parties is to be derived from the language of the deed, taken in connection with the situation of their business, and what may be supposed to be their respective objects and wants ?
Certain general rules of construction in relation to the grant of water power, make a part of the law, when not controlled by the plain andunambiguous meaning of the language employed in the grant. One rule is, thatfthe grant of a mill-site, where mills are standing, or where the terms of the grant indicate, that it is the intention of the grantee to construct such, the latter may appropriate the privilege to any purpose at pleasure, with the right to change the purpose, whenever he may choose. And where the language is not so clear as to free the case from doubt, whether, the intention was to give a measure of the quantity to be used, or to con
In the deed from Mark Blaisdell to Henry D. Smith, the object of the grant of the water power is as direct and' simple as language could make it, without the use of restrictive words. There is nothing tending to show, that any other purpose was then entertained, or would be thought of after-wards. The deed contains no words indicative of an intention to give a general measure of the quantity of water power granted, such as “ so much as would be required,” &c. “the'quantity necessary,” or “ sufficient,” for the purposes of tanning.
The grantor was the owner of the grist-mill, then in operation. He would have no interest to favor the erection of another mill of the same kind, but to prevent it,- and consequently may be supposed to desire to restrict the grant, 'so as to secure him from the exposure to the loss of patronage. A tannery, in all its various branches, so far from diminishing the business of the grist-mill, would tend to increase it, by bringing to its vicinity, those who might avail themselves of its advantages. The grantee was a tanner, and desirous of obtaining a situation, where he could carry on the business of his trade with success in all its various branches. And the construction of his works and the subsequent occupation, while he owned it, manifested no other purpose than that expressed in the deed.
By adopting the construction contended for by the plaintiff, serious difficulties might arise in questions relating to the quantity, secured to the grantee, if he were to substitute other works for those connected with such as were needed
The provision in the grant, that the plaintiff was to keep in repair one twelfth part of the dam, cannot restrict the grantee to the use of that proportion of the water. Such would be repugnant to the plain language used; and this cannot aid the plaintiff’s construction.
The plaintiff took the water from the dam, and was using it for a purpose not authorized by the grant; and the defendant, acting under the direction of the owners of the dam, violated no rights of the plaintiff in closing it and diverting the water.
According to the agreement of the parties, the plaintiff must become Nonsuit.