78 Mich. 438 | Mich. | 1889
Lead Opinion
Plaintiff sued defendants for using more water than they were entitled to under the title vested in them in the water-power of Rock river. The only important question is whether defendants owned an absolute or only a contingent interest. Plaintiff claims that defendants have no interest which is not subject to his prior claim to use the entire power for his mill, if wanted for the use of the equivalent -of four run of stone. Defendants claim an absolute right .to one-eighth of the power, and a qualified right to still more, if the latter is not needed by plaintiff.
I think the whole question turns on the meaning of the deed, and that it can make no difference what plaintiff has done in enlarging his improvement; and it is equally independent of any supposed policy or expectation of plaintiff or his grantors. There was nothing to prevent them from granting as much of their property as they saw fit, and it can make no difference whether ex post facto wisdom would have prevented the contract, had it been anticipated.
The deed in question was a grant of property needing
“Together with the undivided one-eighth part of the land flowed, or subject to be flowed, by said pond, for which the parties of the first part have a title in fee-simple, together with the undivided one-eighth of all the interest the parties of the first part have in and to other lands now flowed by said pond; and it is understood and agreed by the parties that if the undivided one-eighth of the Rock-river water-power, which is hereby intended to be conveyed, does not amount to 225 inches of water, then the party of the second part, his heirs and devisees, shall have the right to use enough water from the said pond to make 225 inches, or a stream of water filling an opening 15 inches square, and the same to be used under a head of eight feet, upon the above-described premises, according to the following provisions, that is to say: The parties of the first part, for themselves, their heirs and assigns, reserve a sufficient amount of water, properly used, to drive four run of French buhr mill-stones, with all necessary' machinery, first; and the party of the second part, his heirs and assigns, is to have the next use of the water, to the amount above specified, together with a proper use of the river below the bridge for tail water.'”
The deed proceeded to provide that in case of any break in the dam, or necessary repairs thereto, the grantors should be at seven-eighths, and the grantee at one-eighth, of the expense, except such repairs as are needed in the separate races and appurtenances of each property, which are to be made by the owners. The grantors reserve the right to raise the dam two feet. It will be observed that the liability of the grantee to bear one-eighth of the expense of the repairs is absolute, and not contingent. And if plaintiff’s contention is correct, this duty will exist perpetually, although he should continually use all the water in the river, which it needs no testimony to show will always be diminishing, and not increasing.
The question is not one which can be made very much clearer by any reasoning process. There can be no doubt
I am unable to see any ambiguity in the grant by its terms, or any created by its context. I think defendants
Dissenting Opinion
(dissenting). Prior to 1858, Edward S. Moore was the sole owner of the Rock-riyer waterpower at Three Rivers, in this State, on Rock river. The water-power embraced a dam and pond covering several acres, and which gave a head at the dam of about, 8 feet. Mr. Moore also owned the real estate lying about the dam, and upon which it was situated. On the west side of the river Mr.. Moore had and owned a factory, having one water-wheel, and taking water from the pond through an opening 15 inches square. On the east side of the river he had and owned a flouring-mill, having five wheels, each of the same make and capacity of the factory wheel. The mill contained four run of stone, and the wheels were such as were usually used in mills and factories at that time. In dry weather, in summer, the mill used nearly all the water that could be obtained from the river to run it. At other times - the stream furnished much more water than was needed for the mill. A portion of the time the mill was kept running night and day, and had been operated several years previous to 1858. In that year Caldwell & Wilcox opened a factory near the dam, on the west side of the river, for making sash, doors, and blinds, and entered into a contract with Mr. Moore for the purchase of a site therefor, together with certain rights in the water-power. These were obtained, and they entered into the business, which they continued until 1859, when Wilcox sold his interest to Caldwell. Caldwell continued the business until 1860; and on November 10, of that year he received his deed of Moore on his purchase. Said deed purports to be for the com
“ Together with the undivided one-eighth part of the land flowed, or subject to be flowed, by said pond, for which the parties of the first part have a title in fee-simple, together with the undivided one-eighth of all the interest the parties .of the first part have in and to other lands now flowed by said pond; and it is understood and agreed by the parties that, if the undivided one-eighth of the Rock-river water-power, which is hereby intended to be conveyed, does not amount to 225 inches of water, then the party of the second part, his heirs and devisees, shall have the right to. use enough water from said pond to make 225 inches, or a stream of water filling an opening 15 inches square, and the same to be used under a head of eight feet, upon the above-described premises, according to the following provisions, that is to say: The parties of the first part, for themselves, their heirs and assigns, reserve a sufficient amount of water, properly used, to drive four run of French buhr millstones, with all necessary machinery, first; and the party of the second part, his heirs and assigns, is to have the next use of the water, to the amount above specified, together with a proper use of the river below the bridge for tail water. And it is mutually agreed that in case of a break in the dam, or in any necessary repairs to the same, the parties of the first part shall be to seven-eighths of the expense, and the party of the second part one-eighth, except when a break occurs and repairs are necessary below or at the head gates of the head race to the flouring-mill, or in or around any similar improvement to the said dam, or in or around the flume to the factory on the above-described premises, in which case the repairs are to be made by the parties owning the premises on which the bi'eak occui’s or repairs are necessary.
“And it is further agreed by the parties that there shall be no unnecessary waste of water, and, in case of improvement of the remainder of the water-power, proper respect shall be paid to the same, by keeping head gates shut when the water is not wanted for propelliixg machinery, and the flume kept tight and the dam repaired, for safety and saving of water; and, in case of the party of the second part selling or disposing of the above-described premises and water-power, all parties, their heirs and*447 assigns, bo whom such disposition or sale may be made, shall be bound by the foregoing covenants, stipulations, and agreements. And the parties of the first part reserve the right to raise the water in said pond two feet above the present height or level of the water.
“Together with, all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder or remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, or demand whatsoever of the said parties of the first part, either in law or equity, of, in, and to the above-bargained premises, with the hereditaments and appurtenances; to have and to hold the said premises as above described, with the appurtenances, unto the said party of the second part, and to his heirs and assigns, forever.”
The deed then continued to the close with the usual covenants of warranty.
Caldwell sold his interests under said deed to Cox & Throp during the same year, who leased the property for various purposes for some time, and subsequently allowed it to remain unused. The defendants purchased of Cox & Throp their interest in the west side water-power in 1881, for the purpose of operating the water-works in Three Kivers, and it is under this title the defendants claim the right to use the water from the river and pond nécessary to operate their water-works; and it is their claim that there is sufficient water for that purpose, and also to operate four run of French buhr millstones at said flouring-mill of plaintiff, if the plaintiff should take no more than is necessary for that purpose, and running the necessary machinery. It is conceded the plaintiff owns the entire water-power, except such part thereof as passed to Caldwell by his deed from Moore.
It is claimed by plaintiff that a sufficient quantity of water was reserved in Caldwell's deed at all time3 to run the plaintiff's mill with four run of French buhr millstones, and the necessary machinery, as the same was
The defendants claim that their title is in fee, and absolute, to one-eighth of the entire power, and under no circumstances can the mill-owners have the prior use of any portion of the one-eiglith of the water mentioned in Moore's deed to Caldwell; that it is made appurtenant to the land conveyed by the deed, and, inasmuch as it is not shown that the defendants have used more than the one-eighth of the power or water, the plaintiff must fail to recover. These several contentions and claims of the parties present the theories upon which the case was tried at the circuit. The plaintiff prevailed, and the defendants bring error.
The case was ably presented by learned counsel upon both sides, both upon the briefs and the arguments on. the hearing, and my impressions at that time were decidedly against the defendants; and, upon a full and careful examination of the case, since then made, I am more than ever convinced that my impressions were correct.
The decision of the case depends entirely upon the proper construction of the several clauses of the deed given by Moore to Caldwell in 1860. In giving construction to the provisions of this deed, we must take into consideration the nature of the subject-matter of which
Rock river is a small stream at Three Rivers, emptying into the St. Joseph river at that point. Mr. Moore was one of the early settlers of that village, and owned whatever water-power the stream would furnish, and early erected this large flouring-mill upon its banks, and, to secure the power to run the mill, was obliged to build a dam for that purpose, which raised the waters seven or eight feet in the river, and enabled him, by means of a race, to conduct them from the pond created by the dam to his mill in quantities sufficient to operate four run of French buhr millstones, and the necessary machinery for that purpose, except in very dry seasons, when the stream was insufficient to give him the needed power. The greater portion of the seasons, however, there was considerably more water than was necessary to successfully operate the four run of stones. The mill and the power were very valuable. The capacity of the mill was 100 barrels per day, and over, and the mill was furnished with no means of operating it other than the water-power
When Caldwell & Wilcox made their purchase, it was not for the purpose of establishing a large business in manufacturing, but to supply the local demand for doors, sash, and blinds in the Three Rivers community; and nothing appears in the record showing that the power they desired for their purposes exceeded that which the surplus water would give, after using all that was necessary at the mill for operating the four run of stones night and day. This was all that Moore could spare, and retain the usefulness and value of his mill and power; and this was, in all probability, as well known to Caldwell & Wilcox as to Moore. These facts, together with the other fact, that no one representing the Caldwell interest ever attempted to use more than the surplus water, except the defendants, are circumstances of very great significance in giving construction to this deed.
If it is necessary, in order to maintain the position assumed by counsel for the defendants in making the defense set up, that such an interpretation should be given to the language of this deed as would in its effect
So far as the construction of this deed by the action and understanding of the parties is concerned, it seems to have been all in favor of the plaintiff. I know it is claimed that the action and understandings referred to were principally with the tenants and employés of defendants’ grantors, and that the testimony relating thereto was taken under the objection of defendants’ counsel; but I think it was unobjectionable. Landlords are presumed to know the amount of property leased, and that tenants are informed of the same and its appurtenances; and their dealing with the property and its use are usually known to the landlords, and both are presumed to be in his interest. 2 Devl. Deeds, § 851; Truett v. Adams, 66 Cal. 218 (5 Pac. Rep. 96); Lovejoy v. Lovett, 124 Mass. 270; Lanman v. Crooker, 97 Ind. 163.
Upon the language of the deed itself, I think the fair construction is that the plaintiff shall have the first right of use of water sufficient in amount to run his four run of French buhr millstone's, and both night and day, if he chooses. There is no restriction upon the time each day the flouring-mill may be run. The deed first conveys to Caldwell an undivided one-eighth of the land flowed by the pond, or subject to be flowed by it, when Moore held the title in fee, together with an undivided eighth interest in such rights as Moore had in the other lands flowed by the pond; second, an undivided one-eighth of the Eock-river water-power, not exceeding 225 inches of water, under a head of 8 feet, and if the one-eighth failed to give that number of inches, then the deficit could be taken from the pond. Said conveyance was, however, to be subject to the following reservation as to the use of the water:
2. Caldwell was to have the next use of water, to the amount above specified, together with proper use of the river below the bridge for “tail water."
It will be noticed that the Caldwell power was entitled to water from the pond to make up its supply, so long as there was enough left therein to supply both powers. Such I understand to be the meaning of the deed, when properly construed; and such, I have no doubt, was the intention of the parties when the deed was made. And there can be no question, I apprehend, but that the quantity Moore was entitled to at his mill in 1858 plaintiff is entitled to now. Whether the power could be increased or not, by raising the dam or otnerwise, was a matter of no concern to Mr. Caldwell or his grantees. Mr. Moore and his grantees were only interested in that matter.
The rule that deeds are to be taken most strongly against the grantor only applies where its construction is doubtful. I have no doubt about the proper construction of the instrument under review. The law favors equities in giving construction to deeds, and in ascertaining their true meaning. Blake v. Madigan, 65 Me. 528; Erickson v. Land & Iron Co., 50 Mich. 604 (16 N. W. Rep. 161).
In construing a deed, all of its parts must be taken into consideration, and the bearing of each upon the others should be properly regarded; and when the parties have, in the instrument itself, expressed the intention of any particular part, while it may modify the construction to be given to other parts of the instrument, it will not necessarily control such construction.
A conveyance of land does not pass a thing appurtenant thereto, when such thing is excepted or reserved from the operation of the conveyance; and the deed of