190 Mass. 48 | Mass. | 1906
In May, 1889, and for some years before that time, the Globe Yarn Mills and the defendant, both manufacturing corporations, were adjoining riparian owners upon the same natural watercourse, the defendant being the upper owner. Both operated their plants by steam and were accustomed to draw water from the stream for condensing purposes. The Globe Yarn Mills had constructed upon its land a pond and other appliances, which it used to receive and cool the water from its condensing plant, and from which the cooled water returned to the natural stream. The water in this pond is at a lower level than the plant of the Globe Yarn Mills, and is not available for use therein and could not be made so without going to considerable expense to install and maintain a pumping system; it could be made available by this'means. The defendant drew its condensing water from the stream at a point within its own land, and after using it discharged it by a pipe or conduit running through its own land into the land of the Globe Yarn Mills and thence into the pond of the latter corporation, where it became cooled and was discharged again into the natural stream, together with the water coming from the Globe Yarn Mills. All the water drawn from the stream by the de
“ Whereas: The Globe Yarn Mills a corporation by law established, located and doing business at Fall River, County of Bristol and State of Massachusetts, has built a dam and pond on Cook Pond Outlet Stream, and made certain arrangements whereby the water is cooled after having been used for steam purposes, to the great benefit of said Mills and also of the Laurel Lake Mills, a corporation of said Fall River, now using the same for a like purpose.
“Said pond, dam and arrangements, being west of Mill No. 2 of the property of said Globe Yarn Mills, and wholly on land of said Globe Yarn Mills.
“ And said Laurel Lake Mills desire to use the same for the purposes aforesaid.
“ Now know all men to whom these presents may come, that the Globe Yarn Mills for itself, and its successors and assigns, in consideration of two hundred and fifty dollars to it paid by the said Laurel Lake Mills the receipt whereof is hereby acknowledged, and of the further sum of one hundred and twenty-five dollars to be paid October 1st, 1889, and of a like sum on October 1st of each and every year thereafter for the term of fifteen years from October 1st, 1888, does hereby grant to said Laurel Lake Mills, its successors and assigns, the right and privilege to run into said Pond its condensing water, and to use said Pond, dam and arrangements, as it now uses them, and has so used, since Oct. 1st, 1886. And the said Laurel Lake Mills for itself and its successors and assigns, does hereby agree to pay to said Globe Yarn Mills, its successors and assigns, said $250 on delivery of this instrument, and said $125 on October 1st, 1889, and $125 on October 1st of each and every year thereafter, for the term of fifteen years, from October 1st, 1888. The expense of keeping said dam, pond and arrangements, in the same repair they are now in shall be borne equally by the parties hereto. By executing this instrument neither party waives any rights as riparian owners on said stream.”
In July, 1899, the plaintiff became the owner of the property
The plaintiff’s complaint is that the defendant has withdrawn water from the stream for condensing purposes without returning this water cooled to the stream before it enters upon the plaintiff’s land, whereby the amount of water available for use by the plaintiff has been diminished below its needs, to its serious damage; and the only question is whether, under the written agreement, the defendant has, as against the plaintiff, the right to do this.
No question is made, or can be made, that if there were no agreement the plaintiff, as a lower riparian owner, has a right to the natural flow of the stream from the defendant’s premises into its own, and that the defendant has not the right to divert water from the stream for manufacturing purposes to such an
Accordingly, without invoking the principle that the language of this grant should be construed most strongly against the grantor, or the other principle, perhaps of less general application, that of two repugnant clauses in a deed the earlier should prevail, neither of which doctrines seems to us to be entitled to much weight in this case, but giving effect to all the language of this agreement, in the light of the then existing circumstances, we are of opinion that it gave to the defendant, as against the plaintiff, the right, instead of returning directly to the stream properly cooled the water which it had drawn therefrom for condensing purposes, to discharge such water into the plaintiff’s cooling pond in the manner used when the agreement was made and ever since.
The result is that there must be
Judgment for the defendant.