276 Mass. 528 | Mass. | 1931
This suit relates to the respective rights of the parties in the use of the water and water power developed from the fall in the Connecticut River at Holyoke and
By well known and long established custom in the granting or leasing of water power, the mill powers granted are to be used for mechanical purposes for the production of power by the operation of water wheels and for' no other purpose, and the water needed to develop mill powers cannot be used for manufacturing processes, feed water or steam condensing purposes, for filtration or for other purposes. The defendant is using or proposes to use its property, which it purchased from the Lyman Mills and which has heretofore been operated as a cotton textile manufactory, as a paper mill; it is using its several mill powers, not upon the parcels of land to which alone they are appurtenant but upon a parcel or parcels to which they are not appurtenant, and is using its mill powers not only for mechanical purposes in the operation of water wheels but
The mill powers of the defendant are known as sixteen-hour mill powers, the period of use of which is, by well known and long established custom at and since the date of the grants of mill power, from 6 a.m. to 10 p.m. The defendant is using its mill powers at other than these hours and at disconnected periods. The defendant is constructing or has constructed a filtration basin to which pipes are being or have been laid so that the water obtained from the flume does not go through the water wheels of the mill of the defendant but is used and consumed on the premises. These improper and unauthorized uses of the mill powers and of water will throw the canals out of balance, and will interfere with the legitimate use thereof by grantees to whom the plaintiff is obligated to deliver water for power purposes.
These allegations of facts so far as well pleaded must be accepted as true for the purposes of this decision.
Numerous causes of demurrer are assigned. They need not be examined one by one. In the main they relate to want of equity and to lack of sufficient certainty in the allegations. The issues raised and argued will be grouped for convenience.
1. One question is whether the defendant may use its mill powers interchangeably in whole or in part to suit its convenience on its several parcels granted at different times. The plaintiff contends that these mill powers may be used only on the land with which they were originally granted. The answer depends upon the terms of the grant. Those terms must be interpreted in the light of the material circumstances attending their use and in such manner as to bring to pass the main result designed to be accomplished by the transaction. All the words employed must be given a meaning consonant with the general import of the instrument. They must be so construed as to give effect to the apparent intent of the parties unless inconsistent
The particular facts relevant to the fifteen mill powers and the land granted therewith by the predecessor in title of the plaintiff, the Hadley Falls Company, to the Lyman Mills in 1854, and now owned by the defendant, are these: The grant, prefaced by a recital that the Lyman Mills had agreed to purchase of the Hadley Falls Company "the buildings [sfc] and parcels of land with mill-power as described in the annexed proposals” made a part thereof, was for one single consideration whereby four parcels of land described by metes and bounds were conveyed "Together with fifteen mill-powers at the upper fall of the power described in the annexed proposals, and to be used as therein set forth, with all the privileges and appurtenances to the same belonging . . . .” The grantor reserved the right of entry upon the demised premises for the purpose of repairing the dam, canals, water courses and waterways and removing obstructions therefrom. The proposals incorporated in the grant are entitled as being for the sale of its mill powers and land by the grantor, and state that the mill powers are to be drawn "through the land to be granted” and that the perpetual annual rent is reserved for "each mill power, with the land to which it is annexed.” It further provides that the "land conveyed to the grantees of water power in connnection with the mill sites” shall be held and used subject to specified restrictions. There is also provision with respect to severance by sale of one or more of the several mill powers originally conveyed "with the proper and convenient part of the land.” The votes of the stockholders of the Hadley Falls Company authorizing the sale
The instruments of grant of the land and the six and one half mill powers now owned by the defendant, executed by the plaintiff and its original grantees in 1869, differ in no material particulars from those of the 1854 grant, already described, except that there were no corporate votes. Those grantees were individuals and not a corporation. The conclusions reached as to the effect of the 1854 transaction are equally applicable to the one of 1869. The mill powers thus granted were appurtenant to the land conveyed at the same time and as part of the same transfer. It follows that all these mill powers cannot be used interchangeably but can be used only on the parcels of land with which they were originally united. The present convenience or advantage of the defendant growing out of its ownership of these several parcels cannot overcome the plain terms of the instruments of grant. The nature and use of the mill powers and of the land must be determined from the instruments out
The five day mill powers of surplus water which the defendant is entitled to draw were transferred by indenture, dated April 1, 1882, between the plaintiff and the Lyman Mills and in accordance with regulations of the plaintiff adopted on September 17, 1881. The contention of the defendant that these mill powers are either easements in gross or are appurtenant to all parcels of land owned by it cannot be supported. This indenture contains' the recital that the grant is made in settlement and discharge of the obligations of the plaintiff as the successor of the Hadley Falls Company under the indenture and agreement of the latter corporation with the Lyman Mills dated April 28, 1854. The tenor of the grant conforms to this recital. As already pointed out the fifteen permanent mill powers granted under the deed of April 28, 1854, were clearly made appurtenant to the land conveyed with them. The agreement between the same parties of even date with that deed obligated the Hadley Falls Company to convey to the Lyman Mills any additional mill powers requested by the latter provided at the time of such request the former had in its upper canal a sufficient quantity of water therefor not then sold or disposed of. These additional mill powers were to be held “for any of the uses or purposes set forth and declared in the” vote of the stockholders of the Hadley Falls Company whereby its treasurer was authorized to convey the land and buildings to the Lyman Mills with “sufficient water power to run at all times all the machinery now in or which may be put into the two cotton mills . . . or in any other mills which may be erected in the stead and place of the said mills, or in any mills which shall be erected on the lands to be conveyed to” the Lyman Mills. The grant of the five day mill powers of surplus water made in 1882 must be construed in the light of the deed and agreement of April 28, 1854, with which it is inseparably connected. Thus construed plainly the additional surplus mill powers were appurtenant to and to be used on the
In our opinion the use by the defendant of its mill powers on or in connection with parcels of land other than those to which they were originally made appurtenant is unauthorized and contrary to the terms and conditions on which it holds such mill powers. The case at bar is distinguishable in its facts on this point from Bardwell v. Ames, 22 Pick. 333, Cowell v. Thayer, 5 Met. 253, Hurd v. Curtis, 7 Met. 94, and De Witt v. Harvey, 4 Gray, 486.
2. Another question is whether the defendant in the use of its mill powers is limited to the driving of water wheels. The defendant asserts the right also to use water for other purposes in manufacturing its product. It is to be observed in this connection that the defendant derives its rights exclusively by grant from the plaintiff and its predecessor. It is not a riparian proprietor. Rights to the use of water inherent in an owner of land upon a stream may be laid to one side. Rights in the use of water dependent entirely upon grant may be restricted to stated purposes and may not exceed those limitations. Lincoln v. Lincoln, 110 Mass. 449. Walker Ice Co. v. American Steel & Wire Co. 185 Mass. 463. Lamb Knitting Machine Co. v. Chicopee Manuf. Co. 273 Mass. 506, 517. The terms of the grant must be examined with care. The words of grant in this particular were of “mill-powers ... of the power described in the . . . proposals, and to be used as therein set forth.” The words “mill-powers” and “power” according to their natural signification import the production of power alone. “Mill power” is an expression designating a unit of water power. It is used in manufacturing communities where the development has been made by a corporation organized to acquire water and flowage rights, to erect a dam
If the term "mill power” be regarded as of doubtful signification and susceptible of special meaning in the science of hydraulics, then the allegations of the bill as to the meaning attached to the term by long established custom and usage become pertinent. The meaning of ambiguous terms in a contract may be ascertained by proof that a particular signification has become attached to them by reputation, usage of trade or otherwise. Stoops v. Smith, 100 Mass. 63, 66. Martin v. Jablonski, 253 Mass. 451, 456. In such cases also the practical construction placed upon such terms by the parties through a considerable period of time may be considered in determining the meaning and purpose of the contract. Pittsfield & North Adams Railroad v. Boston & Albany Railroad, 260 Mass. 390, 395. Ovans v. Castrucci, 267 Mass. 600, 605.
Cases like Ashley v. Pease, 18 Pick. 268, Tourtellot v. Phelps, 4 Gray, 370, and Pratt v. Lamson, 2 Allen, 275, are distinguishable in their facts in this particular from the case set- out in the bill.
3. Another question presented is whether the averments of the bill show with sufficient certainty the hours of the day during which the defendant is entitled to use its mill powers. The deeds do not expressly state those hours. The proposals of the Hadley Falls Company in declaring a mill power to be the right to draw specified water under the particular head “during sixteen hours in a day” do not delimit those hours. The indenture under which the defendant holds its right to draw six and one half permanent mill powers “during sixteen hours in a day” contains a further provision under certain conditions for the acquisition of the right “to draw water . . . the remaining eight hours of the twenty-four hours per day.” The regulations of the draft of surplus water attached to the indenture of April 1, 1882, granting five day mill powers of surplus water define a day as “the time between six a.m. and ten p.m. of each working day,” and a night as the time beginning at 10 p.m. of each working day and extending thence to 6 a.m. of the day succeeding. The agreement of the Lyman Mills of even date with this indenture refers to its twenty-one and one half mill powers as mill powers “to which we are entitled by day.” The allegations of the bill further are that the mill powers owned by the defendant are known as sixteen-hour mill powers and, by well known and long established customs and usage and by the consent of the owners of said mill powers prior to the acquisition of them by the defendant and other owners of like mill powers, are mill powers the period of use of which is from 6 o’clock a.m. to 10 o’clock p.m. of each working day, and that the usual and customary daily hours of labor at and since the date of the grants to the predecessors in title of the defendant have been between and not outside
4. The allegations of the bill sufficiently set forth a use of water by the defendant in excess of the quantity to which it is entitled. These allegations are in substance that the defendant is using or proposes and threatens to use for manufacturing processes, feed water, steam condensing and filtration purposes, not only its mill powers but also water obtained directly from the flume, connected with the canal of the plaintiff, by means of a filtration basin and pipes so that the water will not go through the water wheels of the defendant’s mill but will be consumed upon its premises, and is so using and threatening to use for these last' mentioned purposes water from the plaintiff’s canals and water courses in addition to that required to develop its mill powers. Plainly these allegations are of a use of water by the defendant in excess of its rights and wholly without authority. They are sufficiently explicit in view of the nature of the subject. Malden & Melrose Gas Light Co. v. Chandler, 209 Mass. 354, 358. The proposals subject to which the defendant holds all its water rights expressly negative such withdrawals by the provision that the “grantees are not to use more water than is granted . . .
' 5. The complaints set out in the bill are of a nature which
The remedies supplied to the plaintiff by the terms of the instruments to stop the water from entering the flume and also to maintain an action at law for damages are not exclusive. There is nothing to indicate an intention that other appropriate action in the courts should not be available to the plaintiff. Finkelstein v. Sneierson, 273 Mass. 424, and cases cited. Boston, Barre & Gardner Railroad v. Wellington, 113 Mass. 79, 87.
The result is that the demurrer must be overruled and the case is to stand for further proceedings.
Ordered accordingly.