61 A. 554 | N.H. | 1905
The deed of the Colbys to Thompson, May 2, 1855, conveyed the whole of the Picketing mill privilege, "excepting the privilege of drawing and using water for gristmill . . . whenever there may be water in the stream or mill-pond for that purpose, it being understood that said gristmill is to use the water for running the machinery now in the same and any other additional machinery which may be put into the same or any other gristmill which may be substituted therefor, in preference to any other mills or machinery upon said privilege." It is found that "the amount of business done and the amount of water used at the gristmill are substantially the same now as on May 2, 1855, and have been substantially the same from that date to this"; that the plaintiff has not wasted the water and "has not used the gristmill or water-power connected therewith for the purpose of carrying on any other business than the gristmill business and has no intention of doing so."
The water-wheels now in use require no more water than has been used in running the gristmill for the last forty years and more; but wheels of modern construction could be put into the mill, which to develop the same amount of power would use a much smaller amount of water. The defendants excepted to the refusal of the court to order the plaintiff to substitute such wheels for those now in use.
In the absence of a definite specification of the amount of water excepted or the manner of its application to produce power, it must be understood the parties contracted with reference to the manner and extent the water was then at the date of the deed actually used for the purpose specified. Horne v. Hutchins,
Exceptions overruled.
YOUNG, J., did not sit: the others concurred.