3 Or. 1 | Multnomah Cty. Cir. Ct., O.R. | 1867
The principal question in this case arises upon the construction of the deed from the defendant to Green, in determining what rigid and privileges were conveyed.
If no reference had been made to the mill or dam, the language of the deed might be construed to convey a right to all the power afforded by the natural flow at all times. But reference in the deed to the defendant’s mill-dam and wheel, confines the right to flow back the water to particular limits. And I think, upon the same principle and with equal certainty, the reference to defendant’s mill and wheel limits the purchase, and reserves to the plaintiff rights that otherwise would have passed. The instrument, taken as a whole, shows the intention of the parties to have been, that the defendant should retain such right in the water as was necessary to a reasonable use of his mill. It is a pertinent matter, that the deed discloses on its face the intended use
The words, “The right at all times to use all the water which naturally flows below said mill,” if they stood alone, might be of doubtful construction, and the whole sentence in which they occur, taken independently of the rest of the instrument, might, without much -violence or strictness, be construed to convey an absolute right to have the water flow at all seasons of the year and at all hours of the day, in the precise quantify it would have flowed in a state of nature.
But it is necessary to give consideration to all parts of tho instrument, in order to ascertain what was really tho intent of the parties. (Marvin v. Stone, 2 Cow. 781.) For this purpose, the surrounding circumstances within tho knowledge of the parties at tho time should be considered. (Blossom v. Griffin, 3 Kernan, 569.)
It will be presumed that the parties were contracting with knowledge of the situation of tho property; audit is evident that they did not intend to abandon the advantages derived from using the lake as a reservoir. The terms of the contract exclude the idea that the defendant was expected to abandon the use of his mill; but it seems to havo been’contemplated that the defendant could and would so use Ms mill that the flow of water below it would supply the requirements of the purchaser’s business, whenever there was sufficient water. It is admitted that the plaintiff has a reservoir of sufficient capacity; that if, during each day, the defendant lets down sufficient water for the twenty-
Had the defendant sold all the land he owned below “the foot of the wheel” down to the Wallamet Biver, with all its hereditaments and appurtenances, I think the purchaser would have acquired all the rights' that are conveyed by this deed. But in that case the purchaser would have taken subject to all the burdens and servitudes connected with the use of the grantor’s mill. “ The purchaser of part of an estate takes it with the servitudes that are visibly attached at the time of the sale.” (Lampman v. Milks, 7 Smith, 507.)
But it seems too evident, from the terms of the contract, that the parties intended a continuation of the use of defendant’s mill to admit of argument. The purchaser evidently took the property subject to a right in the defendant to make such use of the lake as had been theretofore made, if not seriously detrimental to the purchaser.
And if there had been no relation of grantor and grantee, the owner of the lands above would have a right to construct a dam, and to make use of surplus water to fill the pond when the detention would not work actual injury or damage to his neighbor. “ The right to use necessarily implies the right to dam and to detain the water.” (Van Hoesen v.
He must not detain it “ unreasonably, or let it off in unusual quantities to the annoyance of his neighbor.” (3 Kent’s Com. 440; Webb v. The Portland M. Co., 3 Sumner, 189.)
"What an unreasonable detention is, in general, a question of fact. I think it is not an unreasonable detention to .fill the defendant’s pond in tlie wet season with surplus water, that could not then be available to the plaintiff, and to discharge it in the dry season, in proper quantities, when its flow must necessarily be advantageous to the plaintiff. By unavoidable construction of the contract, the defendant has a right to use Ms mill, and the rule is that he must so use his property as not to injure others. He has a right at proper times to detain the surplus water by ponding the lake. I think he has by his deed limited himself to such times; and that he has no-right to accumulate and retain water at times when it is needed for the use of plaintiff’s works, I think he may at all times retain the water at the height at which it had boon constantly retained, as indicated bythedam andflumeuptothetime of Green’s purchase; namely, at the height of one foot above the surface of the lake; both because that was the condition of things at the time the purchase was made, and because it does not appear that such detention would make the flow of the stream, at any time of scarcity of water, materially less than it would have been had no dam been built. The plaintiff is entitled in low water to have sufficient water to drive the machinery, etc., mentioned in the deed, if the natural flow of the stream, together with surplus water used in running the mill, would produce so much, and if it would not, then so much as the natural flow of the stream would produce, and the defendant has no right to so use his dam or gates as to prevent this. This amount of water should be supplied at .such intervals or with such constancy as to enable the
.) The following decree was entered: It is ordered, adjudged and decreed that said John O. Trullenger is owner in fee of all the water power created, or that can be created, by the flow and fall of said Sucker Creek aboye said point designated as “the foot of the overshot water-wheel,” and has the right to pond and raise the waters of Sucker Lake at and above his said saw-mill at all times when that can be done by means of surplus water; and that all water flowing in said creek over and above twenty-five cubic feet per second, is surplus water. And the said plaintiff is owner in fee of all the water power created, or that can be created, by the flow and fall of the said creek below said point.
It is further ordered, adjudged and decreed, that the said John C. Trullenger be and is hereby required, at all seasons of the year, to permit, at the least, as much water to flow over or through his dam, or the gates thereof, at his said saw-mill, at regular intervals of not exceeding twenty-four hours, as shall be equal to all the water that would naturally flow during the same time in said creek if no ponding or interruption existed. And whenever the water is raised or ponded in Sucker Lake so as to be more than four feet above the natural surface of said lake, said John C. Trullenger is hereby required to permit as much water so to flow in the course of each twenty-four hours as will be equal to twenty-four cubic feet per second for ten hours; that is to say, nine hundred thousand cubic feet of water during each twenty-four hours.
And it is further ordered, adjudged and decreed, that whenever said John C. Trullenger, his heirs or assigns, shall during the wet season cause the said pond, including the said Sucker Lake, to be filled and raised to its full capacity, and shall husband and use said water in a prudent manner conducive to the mutual benefit of said Trullenger and said plaintiff, said Trullenger, his heirs or assigns, shall not during such year be required to draw down said pond or lake lower than to a point four feet above the natural surface of said lake.
And it is further adjudged and decreed that the said plaintiff and the said J. O. Trullenger each pay one half the costs of this suit.
Pending this suit, an injunction was granted restraining the defendant from making certain alterations in his gates and dam, and upon the defendant’s motion, the injunction was so modified “as to allow the defendant to use his saw-mill and gates as he shall desire; providing, at regular intervals, not exceeding twenty-four hours, he discharge water sufficient to supply the iflaintiff’s works.” *
The defendant was required to show cause, upon an alleged violation of the temporary injunction, and the hearing was had subsequent to the rendition of the decree, and after the close of the term.
On this hearing, it was disclosed that there were no definite monuments to indicate the point of “ the natural surface of the lake,’’ and that there was much difference of opinion among persons acquainted with the premises, as to how much of the present depth of water was artificially created. The