Hannum v. West Chester, 70 Pa. 367

Hannum v. West Chester

70 Pa. 367 | Pa. | 1872

The opinion of the court was delivered, January 29th 1872, by

Sharswood, J.

There is really but one question which arises on this record, the answer to which disposes of all the errors assigned. That question is, what is the proper construction of the deed of Ellis Davis to George Davis dated May 15th 1787 ? All the subsequent deeds down to that to the plaintiff of April 13th 1853, are substantially the same. The deed in question grants to George Davis “ the mill-dam and race on the several courses as they now run * * * and all the land now drowned and occupied by said dam and race, or that has been drowned by the same with t£e full and uninterrupted right and use of all the water falling into the said dam and race.” The subsequent deed from Ellis Davis to Ezra Hoopes conveyed his tract, excepting that thus previously granted to George. It is true that it is called a privilege, but with a reference in terms to the former deed, and a statement under a videlioet, of what is thus excepted in the same words as before stated. The plaintiff in error maintains that the grant was only of the right to use the mill-dam and race for the purpose of the mill of the grantee; that that was all he needed, and that to put any other construction upon the grant would be unreasonable, for it would be to cut the farm of the grantors into two parts without any access from the one part to the other. But the established canon of construction is Quoties in verbis nulla est ambiguitas, ibinulla expositio contra verba fienda est. It has accordingly been well observed that although a somewhat strained interpretation of an instrument maybe admissible where an absurdity would otherwise ensue, yet if the intention of the parties is not clear and plain, but in equilibrio the words shall receive their more natural and proper construction: Broom’s Legal Maxims 553. Both the arguments *373based upon the word “ privilege,” and the fact that the description is under an “ una cum,” “ together with,” are met and answered by Caldwell v. Fulton, 7 Casey 475, where both these peculiarities existed. Nor is it clear that there is any such unreasonableness in the grant as contended for, for if there was no other way of getting from one part of the farm to the other or to a public road or outlet, but by crossing the race, a way of necessity would result, and as the grantee stipulated that he should have “ the full and uninterrupted right and use of all the water falling into the said dam and race, to be conveyed along the same,” how could he be perfectly secure in this right and use without interruption unless he was the owner of the land drowned or covered by the water ? We think, therefore, that the conclusion of the learned judge below upon the construction of these deeds was correct. . There is no other point which needs examination, and which is not fully met and answered in the charge and answers to the points. Whether the instructions on the subject of the damages were in the abstract right or wrong, is immaterial as apart from the use of the dam and race to which as we have seen the plaintiff had no right; there was no evidence of any past injury for which damages could have been claimed.

Judgment affirmed.