52 A. 554 | N.H. | 1902
The limitations of the respective rights of the parties to the water-powers created by the main and wing dams largely depend upon the deeds that passed between Greenough and Emmons, Lincoln, and Mason, in *392
1833. Before considering these deeds it should be noted that whatever water was used at the shoe-factory privilege necessarily passed into the lower pond, and thereby became available for use at the plaintiffs' privilege. In the view that is taken of the deeds of 1833, it is immaterial whether more or less water was used at the shoe-factory privilege, and consequently no attempt is made to construe the Greenough-Kennedy lease. By the deed to Emmons, Lincoln, and Mason, Greenough conveyed the easement of having and maintaining that portion of the wing-dam that is south of the thread 'of the stream (Kent v. Taylor,
A consideration of the surrounding circumstances confirms this view. The deeds were exchanged by the parties in settlement of a controversy respecting their water rights. The factory privilege was dependent upon the use that was made of the main dam. If all the water of the river was diverted to the south side by this dam and there used, the factory privilege would be worthless. The deed from Emmons, Lincoln, and Mason to Greenough shows that the grantors had, or pretended to have, a right to draw water from the main dam, or to have the dam changed in form or construction so that it would allow a larger flow of water to their pond. It does not appear that this right, whatever it was, was limited in duration to the life of Greenough or to the happening of any event. If they had no contractual right in the dam, they, as riparian owners, could require it to be so used as not unreasonably to divert the water of the river from their property, unless they or the prior owners had parted with the right, which is not suggested. It is highly improbable that they would release permanent rights or supposed rights in the main dam in exchange for the right of having the waste water turned into their pond during Greenough's lifetime only. On the other hand, it is reasonable to suppose that the rights, whether actual or pretended, which the parties understood they were exchanging possessed the same quality as to permanency — Greenough acquiring an estate in fee in whatever rights in the main dam were conveyed to him by Emmons, Lincoln, and Mason, and they acquiring a like estate in the right to the waste water the same as to the easement of maintaining the wing-dam and flowing Greenough's land. The right of maintaining the wing-dam would be useless unless there was water to be held back by it; and, so far as appears, after the exchange of the deeds of 1833 the only right Emmons, Lincoln, and Mason had to have water pass from the upper to the lower pond was the right afforded by Greenough's covenant above mentioned.
The contemporary construction of the deeds by the parties and their successors in title furnishes additional, convincing evidence on this. point. The case states that, "from 1833 to 1865 the water rights and rights and obligations as to the dams were conceded, claimed, and enjoyed by the parties and those holding under *394
them in accordance with the above-mentioned settlement." No doubt is entertained that Greenough intended to bind himself, his heirs and assigns, by the second covenant the same as by the first, and that his grantees so understood it; and the deed is construed accordingly. The record of the deed gave subsequent purchasers of rights in the water-power created by these dams notice of the existence of this "waste water" right and its ownership. Burbank v. Pillsbury,
By "waste water" the parties evidently meant "all the water river except that used by Greenough at the gristmill and sawmill." This is the interpretation that the parties and their successors in title placed upon the words from 1833 to 1865. The use of water at these mills was not unlimited in extent. It was such extent of use as had previously customarily been made; such as was reasonably necessary for the beneficial enjoyment of the mills as they then severally existed. Dunklee v. Railroad,
When the ownership of the property and water privileges on the south side of the river was severed in 1849 by the deeds of Bartlett to Currier and Bartlett to Favor, there was attached to the gristmill a water right described thus: "the privilege of drawing the water in the same manner it has been accustomed to run, meaning the first right to draw water for the use of the mill as it now is." This language implies that in drawing war, or it was accustomed to run in a certain manner — that is, through certain orifices, water-wheels, etc., which necessarily would limit the draft and govern the quantity. The same idea is expressed by the words "for the use of the mill as it now is" — the use of water to the extent required by the mill as it then was. This language was used to describe the quantity of water that went with the privilege rather than to limit the manner in which, the purpose for which, or the place at which the water was to be used. If this were doubtful, the very great improbability that the parties would undertake to control the particular devices by which the water should be drawn and the particular uses to which it should be applied would remove the doubt. It would require very explicit language to overcome the natural inference that a person would not accept a deed of a mill privilege subject to the condition that his water rights should become forfeited if any change was made in the manner, purpose, or place of use. Whittier v. Company,
Bartlett's deed to Currier estopped him from asserting a right, as riparian owner, to use the water as it passed land retained by him, for it could not be so used without depriving Currier of its use. In fact, Bartlett's water rights had been changed previous to the date of his deeds, from the ordinary-rights of a riparian owner upon a river to the rights of an owner in common with others of a mill-pond. He conveyed to Currier, not riparian rights simply, but an interest in riparian rights which pertained to land owned by himself and others and which had previously been converted into a water-power.
It appears that the quantity of water which Currier became entitled to under Bartlett's conveyance was 980 square inches under a twelve-foot head. He acquired the first right to draw this quantity of water from the portion that could be rightfully used on the south side of the river after the delivery of the deeds of 1833. The right was independent of and superior to the water rights conveyed to Favor with the sawmill. Favor's rights were only "the rights of using the water and flowing land" which Bartlett possessed after his conveyance to Currier; and Bartlett reserved a portion of these rights. A failure by Currier to use the water would not give Favor a right to its use, any more than a failure to use the land to which the water right was attached for the time being would give Favor a right to use that. It was immaterial to Favor and Bartlett whether the 980 inches of water were drawn from the easterly end of the main dam or from its northerly end, or whether it ran over the dam into the lower pond. Neither of them could receive any benefit from having it used at the gristmill privilege. It is quite certain that Bartlett had no intention to limit its use to that portion of the dam. See Whittier v. Company, supra.
Draper Berry subsequently became the owners of the land and rights conveyed to Currier by Bartlett; and in March, 1865, they conveyed to Forbes Cass all their water right over and above 336 square inches; that is to say, the first right as against the other owners on the south side of the river to draw 664 square inches of water from the upper pond under a twelve-foot head, or the right to have such water remain in the pond and flow over the main dam into the lower pond. Forbes Cass conveyed one half of the right thus acquired to Page, subject to an agreement on his part that he would turn the water into the lower pond. The plaintiffs are owners of the factory privilege, the easements and water rights conveyed by Greenough to Emmons, Lincoln, and Mason, and the water rights owned by Forbes Cass after their conveyance to Page. The referee appears to have found that such was the plaintiffs' title and to have correctly interpreted *396 the deeds out of which the title arose, and to have based his findings in favor of the plaintiffs upon the count in the writ for a diversion of water upon the above-mentioned findings and interpretation. The plaintiffs are entitled to a judgment upon these findings.
The foregoing questions, or questions in all respects like them, were considered and decided in Taylor v. Blake,
The referee also found that the defendants have broken the covenant in the Greenough deed of 1833 to keep the easterly end of the main dam beyond point A of sufficient height to turn the surplus water into the lower pond. The defendants deny their liability for the breach of this covenant on two grounds: (1) because, as they say, the covenant does not run with my land; and (2) if it does, because the owners of the remainder *397 of the privileges on the south side of the river are bound by the covenant the same as they, and so an action for its breach cannot be maintained against them alone.
From what has already been shown, it is apparent that the covenant runs with the easement and water rights conveyed by the deed, in fact, the water rights could not be enjoyed without the aid of the covenant. There is a privity of estate between the plaintiffs, as the present owners of the easement and water rights, and the grantees of the Greenough deed. The covenant relates to the maintenance of the easterly portion of the main dam, and its execution is of a continuing nature. As has been seen, Greenough intended to bind his assigns by it, as well as himself. It runs with that portion of the main dam and the water rights dependent upon the maintenance of the same, and binds the successive owners thereof to its performance. The titles of the owners are subject to the burden or incumbrance created by the covenant. Burbank v. Pillsbury
Case discharged.
PARSONS, J., did not sit: the others concurred. *398