273 Mass. 506 | Mass. | 1930
In this case the plaintiff has appealed from an interlocutory decree denying its motion to recommit the master’s report, overruling exceptions thereto, and allowing the defendant’s motion to confirm the report, and from a final decree. The bill was brought to restrain the defendant from preventing, hindering or obstructing
The master appointed found that the plaintiff has conducted upon its premises. the business of manufacturing continuously since its organization in 1900, using water power alone for a short time, then installing steam, and thereafter operating by means of both kinds of power. The water is obtained from a canal owned and operated by the defendant and flows from this canal through a pen-stock of the plaintiff in which is a wheel whereby the power used is generated. The original defendant, the Chicopee Manufacturing Company, carried on a manufacturing business and for power used water conducted through a canal from the Chicopee River. In 1922 Chicopee Manufacturing Corporation, to which the original defendant had transferred its property and business, was added as a party defendant. It has carried on a business similar to that of its predecessor and used water from the canal in the same way. The original defendant will be referred to as the defendant unless otherwise indicated. The property upon which the mill of the plaintiff stands has been used for more than a hundred years for various kinds of manufacturing, but producing principally agricultural machinery and implements.
The first indenture with reference to the water rights in question was made in 1822. In it Benjamin Belcher conveyed to Jonathan Dwight certain tracts of land with the right which the grantor had to the use and privilege of the stream and water of the Chicopee River, excepting and reserving to himself, his heirs and assigns “ the right of taking from the canal so much water as will pass through a gate or aperture of two feet in breadth and one foot in depth from the surface of the water, or a like quantity of water to be ascertained by calculation in case he shall elect to take the same at any other place than at the surface, said water to be taken against the land re
The indenture of 1822 was modified by one made in 1835 between the defendant, successor in title to Dwight, and Benjamin B., John W. and Bildad B. Belcher, successors in title to Benjamin Belcher, in which, after reciting that buildings had been erected on the land retained by Belcher in contravention of his covenant in the 1822 indenture, the defendant released the other parties to the agreement from all claims for damages which had accrued for breach of the covenant and also released them from the covenant in the future in so far as to permit them to continue the present buildings and to erect upon the retained land “ any buildings for Mechanic Shop that they may see fit, excepting such as may be deemed extra
In 1852 the defendant and John W. Belcher entered into an agreement in which the former «consented and agreed that Belcher might substitute a new penstock three feet in diameter in place of that by which water was then drawn from the canal, for the use of “ the works at said Belcher’s furnace,” having the gate thereof so constructed as to regulate or limit the quantity of water to be drawn through the same according to the provisions therein contained. The defendant consented that Belcher and those enjoying his rights in the premises might draw water from the canal for the use of “ said works ” exceeding the quantity he was then entitled to draw according to the reservations and limitations in the indentures of 1822 and 1835 to the extent of the capacity of the penstock three feet in diameter, during the portions of the year when there was a surplus of water beyond what might be required for the operations of the defendant and a designated paper mill. Belcher agreed to limit the quantity which he and those occupying the premises would draw
The master found that the words “ mechanic shop ” in the agreement of 1835 are synonymous with machine shop; that a cupola or air furnace is a chimney for melting iron for the purpose of making it into castings and is a part of a foundry, and that during the entire period from 1822 there has been a cupola or air furnace operated on the premises now owned by the plaintiff which has been used in connection with the manufacturing businesses carried on; that water power has always been employed in connection with the operation of this contrivance, and also, independently of the cupola, for operating machinery to finish the castings; that the cupola or air furnace was used on the average only about three hours continually each day, seldom if ever more than six, but there were grindstones, snagging machines and tumbling barrels which finished or smoothed the castings and which were run by water power mornings, at which time the cupola was not in operation. The plaintiff and its predecessors in title have made use of this water power as they have had occasion to do so during the ordinary daylight hours between seven and six and occasionally at other times. Shortly before this suit was brought the defendant placed
The master found that the evidence seemed to warrant the conclusion that when the proceedings were instituted, and for some time previous thereto, the plaintiff at intervals was not receiving the amount of water which would flow through an opening two feet horizontally and one foot vertically at the surface of the canal, first, because of the construction of this cofferdam and the location of the original or upper opening therein and the failure of the attendant properly to adjust the gate, and, thereafter, because of the failure of the attendant at times to open
The final decree in paragraph one restrained and enjoined the defendant from preventing, hindering or obstructing the plaintiff from receiving for the uses and purposes permitted under paragraph three of the decree, but for no other purpose and at the sole expense of the plaintiff, such amount of water as will flow, under natural conditions and without forced draft or suction, through a gate or aperture in the defendant’s cofferdam, or in the wall or side of the defendant’s canal, two feet in width and one foot in depth from the surface of the water or a like quantity of water, to wit, a like number of cubic feet per second, through an aperture the size of which is to be ascertained by calculation in case the plaintiff elects to take the water elsewhere than at the surface, and/or under any manner of forced draft or suction; provided that nothing in the decree should be deemed to prevent the defendant from drawing down the water in the canal for the purpose of making inspection or repairs or for any other reasonable and proper purpose in connection with the maintenance of the canal. It was also ordered in the decree that the defendant is not obliged to restore or maintain any raceway or aperture under the other or lower canal, and in paragraph three the plaintiff, its officers, agents and servants, were permanently restrained and enjoined from diverting any greater amount or quantity of water from the canal of the defendant than is permitted under paragraph one of the decree, or from diverting any water from the canal for any purpose other than the operation of a cupola and air furnace or foundry, including the incidental work of finishing, cleaning and smoothing the castings produced thereby, except with the consent and permission of the defendant.
In the' plaintiff’s motion to recommit the report it sought
The size of the opening and the use to which the water coming through it could be put are clearly defined in the deed and indenture of 1822. The plaintiff contends that the use as therein limited was enlarged by the indenture of 1835. In this agreement there was no grant of land or of buildings. In so far as buildings were concerned it was a release from claims for damages for breach of covenants as to their erection, accompanied by the permission to erect buildings for a machine shop. In the case of a grant, its terms can be enlarged by implication only if the implication is reasonable and necessary and not inconsistent with the terms. Allen v. Scott, 21 Pick. 25, 29. Hurd v. Curtis, 7 Met. 94, 112-113. Parker v. Bennett, 11 Allen, 388, 392. It is reasonable to suppose that if the use of the water which was strictly limited in the agreement of 1822 was intended to be enlarged by the agreement of 1835 such intention would be clearly expressed. It does not appear from the facts found that
The words “ to which they are entitled ” seem to refer to the whole expression “ their use of the water ” and do not indicate an intention to enlarge the Belchers’ rights. Following the engagement not to interfere with the Belchers in their use of the water, and as a part of the same sentence, is the agreement of the defendant to maintain and keep open a sufficient raceway under the penstock, flume or canal to carry off or convey the water to which they are entitled through the same into the river. Both of these references to the water to which the Belchers were entitled naturally refer to the water rights fixed by the 1822 agreement. These provisions would seem to indicate that the parties may have had hindrances in the matter of receiving the water to which they were entitled as well as in having a sufficient raceway kept open disposing of it, but whether this is so or not the agreement assures the Belchers that no troubles of that kind will occur in the future. There is no finding in the report that the plaintiff or its predecessors in title during the years between 1835 and 1852 made use of the water for any purpose other than operating the cupola or air furnace or foundry including the incidental work of finishing, cleaning and smoothing the castings produced thereby.
The plaintiff contends that the finding of the master as to the raceway is erroneous in that it ignores the water power producing value of a raceway under the canal. We cannot say from the facts reported that the master’s conclusion is wrong, and we are bound by his finding on this issue. It does not appear from the findings whether or not the defendant now owns the location of the lower raceway or that an action at law would not be an adequate remedy
The plaintiff contends that under the 1822 indenture its right was to take water “ against the land retained,” and that it should not be required to take it through an opening in a cofferdam; but the cofferdam extended from the land retained, and it does not appear that the plaintiff’s right to the water is in any manner interfered with by this construction or that it is not receiving the water against the land retained when it is received through an adequate opening in the cofferdam. All questions raised by the interlocutory decree denying the plaintiff’s motion to recommit the master’s report, overruling its exceptions and confirming the report have been considered and no reversible error is disclosed. Upon the findings no order can be made fixing the height at which the plaintiff is entitled to receive its water from the canal.
The plaintiff objects to the final decree because of its use of the words “ as will flow, under natural conditions and without forced draft or suction,” in describing the water to which it is entitled, through an aperture “ two feet in width and one foot in depth,” and also of the words “ and or under any manner of forced draft or suction ” in referring to the right of the plaintiff in case it elects to take water otherwise than through an aperture two feet by one foot at the surface of the canal. The agreement gave Belcher two choices: he might take the water at the surface thr.ough an aperture of the size described, or he might take a like quantity elsewhere, the amount to be ascertained by calculation. We are of opinion that the words used in the first paragraph of the decree to define the plaintiff’s rights in case it elects to take water elsewhere than at the surface should be in the terms of the agreement and should omit the additional
It is not disputed that a provision should be in the decree protecting the defendant in its right to draw the water down in the canal for the purpose of making inspection or repairs, but the plaintiff is entitled to have inserted a limitation to the effect that this shall be done at reasonable times and in reasonable ways. The first paragraph of the decree is to be struck out and the following is to be substituted therefor: (1) That the defendant, Chicopee Manufacturing Corporation, its officers, agents and servants, be and they are hereby permanently restrained and enjoined from preventing, hindering or obstructing the plaintiff from receiving, for the uses and purposes permitted under paragraph (3) of this decree but for no other purpose, and at the sole expense of the plaintiff, such amount of water as will flow through a gate or aperture in the defendant’s cofferdam, or in the wall or side of the defendant’s canal, two feet in width and one foot in depth from the surface of the water or a like quantity of water, to wit, a like number of cubic feet per second, through an aperture the size of which is to be ascertained by calculation in case the plaintiff elects to take said water at any other place than at the surface; provided, however, that nothing in this decree shall be deemed to prevent the defendant, Chicopee Manufacturing Corporation, from drawing down the water in said canal at reasonable times and in reasonable ways for the purpose of making inspection or repairs, or for any other reasonable and proper purpose in connection with the maintenance of said canal.
The interlocutory decree is affirmed, and the final decree, except as paragraph one is herein modified, is affirmed with costs.
Ordered accordingly.