| N.H. | Jul 1, 1860
The evidence shows that both parties derived their title by lease from the Lake Company, and both leases are similar; one giving to the plaintiff the right to draw water for two wheels of a certain description, and the other giving to the defendant the right to draw water for one wheel, and neither lease is in terms made subject to the other. The plaintiff claims the right first to draw water for his two wheels, and that, when the water is low, he is entitled to his supply first; while the defendant claims that he is entitled to an equal share, and an equal right to draw water for his wheel at any and all times; that the plaintiff has no priority over him in the use of the water.
We will first dispose of certain questions raised by the pleadings, which might bear more or less directly upon the main question, not connected with the original title of either party. The parties have had controversy about their rights, and the plaintiff, in his bill, alleges that this controversy had been submitted to Mr. French, the present agent of the Lake Company, and that the same was settled by him. But the evidence shows that the settlement extended only to the rights of Hawkins and Goss. It appears that French did fix a monument in the canal below which they were not to draw the water. But so far as the controversy between the plaintiff' and Cook was concerned, it appears that there was no submission to French of the matters in dispute and that no adjustment was made or attempted by him.
The plaintiff alleges in the bill that Cook is irresponsible; but that is denied in the answer, and the proof shows that he is a man of sufficient means to respond in this case to any amount which the plaintiff' may recover against him. Nor does it here become material to allude to the charges made by the plaintiff that he has sustained great losses upon certain specific contracts by the interference of the defendant. The evidence fails to support those charges fully.
The defendant contends that this hill should be dismissed because the plaintiff has never established his right at law. But it is well settled in New-York and in Massachusetts that where there are different owners of rights in the same water-power or privilege, and the existence of the right has been established at law, or is admitted, but the owners disagree as to the extent of their rights, or their use of the common property, a court of equity will interfere to regulate the use and to define and limit the rights of the several owners: We have held the same to be good law in this State. Burnham v. Kempton, 44 N. H. 78, and authorities there cited. It is necessary in such cases that equity should exercise her jurisdiction in order to prevent a multiplicity of suits.
In the case before us the rights of the parties are not in dispute to draw water from the Perley canal, — the plaintiff for two wheels and the defendant for one wheel, — when there is water enough for both. But when the water is low has the plaintiff a prior right to its use ? or is the defendant at all times entitled to draw the water to Ms wheel whenever the plaintiff may to his ?
It appears that prior to 1848 there had been on the Perley canal in Laconia three mills and privileges ; those occupied by these three defendants at the filing of this bill, January 10, 1860. During the year 1848, or about that time, the canal was deepened, and made wider, and its capacity greatly enlarged. A new privilege was thus created and leased to the plaintiff at the lower end of said canal, where he erected an extensive car manufactory, which went into immediate operation, where there had been no mill before, while the three old mills continued their operations as formerly, — Cook’s being the lowest on the canal, next to the plaintiff’s, and the other two above.
In regard to the Hawkins and Goss mills no question is raised. The priority of the plaintiff’s right over these is admitted. The first lease that is put in evidence of the Goss mill was from the Lake Company to one 'Whicher, dated January 1, 1850, conveying a certain mill on the.Perley canal, “ with water as used in connection therewith.” The first lease of the Hawkins mill that is offered is from the Lake Company to said Hawkins, dated January 1, 1858, and conveying certain land, with the buildings thereon, situated on said canal, and the water-power connected therewith; but it is expressly stipulated that this right to draw water “ shall be subject to the right of Pan let to draw water first.” And the evidence shows that before these leases were made these two privileges had been occupied by tenants under verbal leases, and that it was well understood by these tenants, and by Mr. Bell, the former agent, and by Mr. French, the present agent, that these mills were to draw water from said canal, only subject to Banlet’s right to draw first.
The plaintiff holds under a lease from the Lake Company to himself, dated September 5, 1848, and conveying certain land upon the canal, “ with the right to draw water from the lower end of the
The first lease of the Cook mill and privilege, which has been put in evidence, was from the Lake Company to Benjamin Jewell, dated July 7, 1847, conveying land on the canal and “ water from the canal to run the wheels now put in by said Jewell ” ; and the evidence shows what wheels Jewell had thus put in. This lease was to run seven years, and was to be renewed on certain conditions at the expiration of said term for five years longer. On the back of this lease was the following: “ The within mentioned company having agreed, with the consent of the within named Benjamin Jewell and Nathan T. Fogg, assignee of part of the interest in said lease, to let the within mentioned premises to James W. Burgin, we, the said Jewell and Fogg, do hereby agree with said company to surrender and cancel the said lease on the first day of August next.” Bated July 14, 1849.
And the next day, July 15, 1849, said Lake Company leased to said Burgin the same land and mill, “ and the right to take water from the Perley canal for a wheel; ” and it appeared in evidence that Burgin had before that put in a new wheel, which would do all the work of Jewell’s two wheels, and use about the same quantity of water. This lease was to run eight years from the first day of August, 1849, and was to be renewed on certain conditions for five .years longer. Said Burgin died in 1855, and Mary F. Burgin, his administratrix, assigned all said Burgin’s right in the lease to Vm. Merrill, March 17, 1856, and the said Merrill assigned the same to Cook, the defendant, August 1, 1858. This lease has only been renewed by a continued occupancy of the tenant and the reception of the rent from year to year, as in case of the plaintiff’s lease.
January 1, 1860, — ten days before the filing of this bill, —the Lake Company leased to Cook the land on the Perley canal and the mills, and all the -water-power passing through said canal, except so much as is now leased to said Ranlet; “ and it is understood that this lease is intended to grant only such rights to the water of said canal as remain in said company after the rights granted to said Ranlet, without defining what those rights are, as there were one or more wheels running on said canal prior to the lease to said Ranlet.; and the company do not admit that there is any priority of right in said Ranlet, but leave Cook and Ranlet to settle their rights themselves, — to hold from the first day of January, 1861, to the
Whatever the understanding may have been between the parties as to the effect or construction of these leases, still we can only give them such a construction as their terms will warrant. The earliest lease in point of time was to Jewell, but that lease was given up to the company two years after its date, upon an agreement of the company to lease the same right to Durgin which they did on terms ; but in- the meantime they had given Ranlet a lease of water enough to run two wheels, and that lease must take priority in law of the one given subsequently to Durgin, and which has been assigned to Cook.
This lease to the plaintiff was given for ten years, which would extend to 1858, with a provision that it should be renewed for ten years longer, upon certain terms, which is equivalent to extending the lease for that time. Now a lease for ten years, with such an agreement that it should be renewed or extended for ten years longer, is a sufficient lease for twenty years, according to the doctrine of Hall v. Spaulding, 42 N. H. 259, where it is held that a stipulation in a lease of a portion of certain premises, that in a certain event the tenant shall be entitled to a lease of the residue, will not be construed to require the execution of a new lease for such residue. Here each party was in possession of the premises leased to him, when the lease was given to the other party. This was a sufficient notice of the title and claim made by each to the other, and each had only to inquire of the party giving the lease, to ascertain the terms of the lease to the other. Had the lease to Jewell continued, that would have had the priority of right, but when that was given up and canceled, and a new lease given to Durgin subsequent to that given to the plaintiff, the rights of Durgin must of course be subject to those which the plaintiff had previously acquired, which rights the plaintiff will hold under his lease till 1868.
We therefore hold that the plaintiff is entitled to the priority in the use of the water in the Perley canal which he claims, and that when there is not water enough for both, the defendants are entitled only to the surplus, after the plaintiff' has drawn his supply. It is not clear, upon the evidence, how high the water is required to be in the canal to give the plaintiff the necessary quantity. Perhaps the parties can agree upon that point. If so, the defendants will be enjoined from drawing the water below that point; or, if they do not so agree, the court will send a competent board of commissioners to establish, by some fixed monument, the height in the canal below which the defendants will be enjoined from drawing the water.
A decree will be entered that the plaintiff is entitled to a priority