| Mass. | Oct 25, 1875
The basis of the plaintiff’s bill is that the defendant has built and maintained his dam higher than he was entitled to under the deed from John and Almond Adams.
This deed, which' was dated January 13, 1846, grants to the defendant a certain water privilege on Sudbury River, and provides that “ the said William B. is to have the right to build a . dam across said river as high as he shall need by their being responsible for all damages that may be done by -flowing in consequence of said dam, excepting as is hereinafter provided, to wit, the said William B. shall have the right to flow the land of said John and Almond without paying damage therefor, so far and so high as they can do so without setting the water back upon the wheel of their grist mill, so as in any manner to obstruct said wheel or injure the privilege of said John and Almond.” The plaintiff contends that this clause limits the right of the defendant, so that he could not build a dam which would flow the water back upon the wheel of the mill above; but we are unable to adopt this construction. Its natural construction is, that it gives the defendant the right to build the dam as high as he shall need, he paying all damages, with the proviso that he is not to pay the grantors any damage unless it flows the water back upon their wheel. The clause as to setting the water back upon the grantor’s wheel is a limitation of the right to flow without paying damages, not a limitation of the principal right granted to build a -dam as high as he shall need. The other parts of the deed and the situation and apparent.purposes of the parties, tend -trongly to show that this was the intention of the parties. This deed seems to have been a part of a general scheme of improvement, by establishing upon this privilege as large a factory as was practicable, in which all the parties to the deed and Winchester,
The deed contains a conveyance of two pieces of land on the south side of the river, which the grantors held under a deed from Winchester, containing the provision that the said John and Almond Adams should build a dam across Sudbury River, six feet high, within eighteen months from the ninth day of May, 1845, or give up the premises without any consideration therefor. They therefore inserted in their deed to the defendant the provision that the “ said William B. obligates himself to build a dam, not less than six feet high, across said stream, on or before the ninth day of November, 1846, or give up the premises to the said John and Almond, without any consideration therefor.” This is an important stipulation, in which Winchester is interested, and which the grantors could not waive in whole or in part. It obliged the defendant to build his dam, wherever upon the stream it was located, to a height of at least six feet, and shows clearly that it was not the intention, in the clause we are construing, to limit the dam to such a height that it would not flow the water back upon the wheel of the mill above. The master has found that the defendant built and has maintained his dam at the height of six feet, and we are of opinion that he had the right to do so under his deed.
But the plaintiff contends that if the defendant had the right to build his dam six feet high, yet he was required to build it at such a point on the stream as would do the least damage to the mill above, and therefore that the dam should have been built lower down the stream. We do not think the plaintiff can now take this ground. The deed grants the water privilege and the right to build a dam, without fixing the place where it was to be built. It conveys a tract of land on the south side which has a width of two rods on the river, and as a part of the transaction, Winchester conveys to the defendant a piece of land on the north side of the river, for the purposes of a canal, the upper end of which is opposite the strip of two rods. The defendant proceeded
It is not necessary to consider the effect of the instrument signed by Almond Adams on November 6, 1846. The dam was not fully completed, and its design was to prevent the forfeiture which the defendant would incur if it was not built by November 9, 1846. In the view we have taken it is immaterial, except as evidence of the acquiescence of the parties in the location of the dam.
The result is that the plaintiff’s bill is founded upon an erroneous construction of the deed to the defendant, and that his remedy, for obstructing his water wheel, if any, is by proceedings at law. Bill dismissed.