86 Pa. 529 | Pa. | 1878
delivered the opinion of the court,
The assignments of error from one to eight inclusive, raise substantially the same question and may be considered together. In each of them the complaint is that the court below erred in its construction of the deeds from John C. Mott to the plaintiff.
At the time of the execution and delivery of the deed of September 22d 1866, Mott was the owner of two mills, a grist-mill and a saw-mill. Prior to that date he had leased to the plaintiff a piece of ground for a spoke-factory. All of these mills were supplied
So much is clear. On the 1st of April 1868 Mott, being still the owner of the grist-mill and saw-mill, conveyed the grist-mill to the plaintiff by a deed containing the following clause : “ Also the right and privilege to the use of the water from the race and dam belonging to said Mott, sufficient to run a grist-mill upon the premises hereby conveyed, of the capacity and power as the mill now constructed; or the said Klaer may use the water to the same extent as now used by said grist-mill for any other purpose of propelling or running machinery (except for a saw-mill), in lieu, and place of the water now used by said grist-mill; but in no case is said Klaer, his heirs or assigns, to have the right to use any more water than is now necessary for said grist-mill.” Thus the plaintiff became the owner of both the spoke-mill and the grist-mill; Mott continuing to be the owner of the saw-mill. After the death of Mott the defendants purchased the saw-mill from his executors, and they now have whatever water-right was left in Mott after the conveyances above mentioned, and no more. What was that right ? He had first conveyed to plaintiff the right to the extent of six-horse power of the water left after supplying the grist-mill. He then conveyed to him the grist-mill, with the right to use sufficient water to run it as of its then present power, or to “ use the water to the same extent as used by said grist-mill for any other purpose of propelling or running machinery (except for a saw-mill) in lieu and place of the water now used by said grist-mill.” It is a familiar rule that a deed or grant must be construed most strongly against the grantor. This applies with especial force to a reservation or restriction in a deed whereby there is a withholding of something from the grant. Here the grantor limits the quantity of water to the amount then required for the grist-mill, 'but restricts the purpose to which it shall be applied only to the exclusion of a sawmill. He excludes such use to protect the saw-mill which he still owned, hut,for any other purpose the plaintiff was at liberty to use the water. It is clear that under the two deeds from- Mott to the plaintiff, the water as between the parties must be applied, first, to the grist-mill; second, to the spoke-mill; and third, to the saw-mill, owned by Mott. The latter would have no right to use the water for the saw-mill until the grist and spoke-mills had been supplied. It is equally plain that under the last deed to plaintiff he would have the right to shut down the grist-mill and run the spoke-mill as against Mott, and his grantees of the saw-mill.
This covers all that is really important in the case. The remaining assignments refer to the admission of evidence, and may be briefly disposed of. It was error to admit the evidence contained
All of the assignments of error are sustained. The judgment is reversed, and a venire facias de novo awarded.