21 N.J. Eq. 463 | N.J. | 1869
The opinion of the court was delivered by
The appellants are the owners of a dam and water power-on the Raritan river, at Raritan, in Somerset county. The same formerly belonged to the Somerville Water Power Company, a corporation incorporated February 28th, 1840. The latter company mortgaged their whole property and franchises in 1848, to secure certain bondholders, which mortgage was afterwards foreclosed by them in the United States Circuit Court, and the whole property, franchises, &c., purchased by the bondholders; which bondholders afterwards (March 25th, 1864,) conveyed the same to the appellants, they having been incorporated as the Raritan Water Power-Company, March 24th, 1863, and fully authorized to purchase, possess, and enjoy, all the real estate of the Somerville Water Power Company, including the canal, head gates, water power, water rights, franchises, &c. The Raritan Water Power Company are now the owners of all such property, rights, and franchises, as were owned by the. Somerville Company.
The bill was filed against the Raritan Company, by seven different owners of land along the river, two of whom are above the dam, one at the dam on each side, and the other four are below the dam. The bill complains that the company had raised their dam, and were about to tighten and further raise it; also, that they were about to change the location of the head “gates of their canal, and to enlarge their size, and by these acts to increase the quantity, and to divert more water than they are entitled to. The water power consists of a dam across the river, and a canal about
John I. Gaston and others, who are the corporators of the Somerville Water Power Company, were associated together, previous to their incorporation, as owners of certain real estate on Raritan river, below ' the present dam, and including a dam and water power, known as the Dawes or Vandoren dam. The same had been erected under an act of the legislature of February 16th, 1820, and the purchase-of which was afterwards made by thfe associates. By this water power, I believe, two grist mills and an oil mill were run. The associates being desirous of increasing their power, establishing factories, and building up a manufacturing town at the place now called Raritan, commenced, in the year 1839, the erection of the present water power, and while the same was in progress, obtained from the-legislature their act of incorporation of February 28th, 1840. The preamble of this act recites the fact of ownership by the-associates of their lands and water rights on the Raritan, with the right to erect and maintain the Vandoren dam, pursuant to the act of February 16th, 1820, entitled “ an act to enable Jacob Vandoren to erect a mill dam across theRaritan river,” and that “the said John I. Gaston and his-
The canal was made on the north side of the river, and the following were the owners of lands on the south side, whose consent to the diversion of the water was necessary, commencing at the dam: Willet Taylor, Lawrence V. Davis, Joseph V. D. Vredenburgh, John Van Middlesworth, Garret Van Middlesworth, Peter B. Dumont, James Quick, and Catharine Veghte; all of whom are now dead, except Davis and Vredenburgh, and all of whom were alive while the dam, canal,-and works were in process of construction, and until after their completion. Davis and Vredenburgh, the survivors, are not complainants in this cause, but they were witnesses, and their consent to the erection of the water power is clear. The Taylor land is now owned by the complainant, Crater; the Van Middlesworth farms by the complainant Stryker; the Dumont farm, mostly by the complainants, Frelinghuysen and Hope; the balance of the Dumont farm, and the Quick farm, by L. E. Rice, who is not a complainant, (it being very clear that Quick gave his consent); and the Catharine Veghte farm, by the complainant, Rynear H. Veghte. The defendants set up in their answer, that all the owners at the time of the erection of the water power, under whom the complainants claim, together with the others to be affected on the south side of the river, signed a written consent to the erection of the dam, and the diversion of the water. The first question then arises, was such consent signed ? There is no doubt from the evidence, that in or about the year 1839 or 1840;
There is a significancy in the use of the words, “ written consent or permission,” in the charter before us, as the basis of the right to divert. In the 8th section, the company cannot take or occupy lands for the raceways, without “ the eonsent and permission” of the owners, leaving out the word written, and in the 7th section, the dam cannot be erected without “ the voluntary eonsent” of the owners of the lands where erected. These words are general, and the rights to be acquired are corporeal, and would naturally be based upon an estate of fee simple, and the title would have to be acquired by deed, as was done by the company for the site of their dam and raceways, but concerning the incorporeal right of diverting water, the mode of acquiring it from the various owners affected by the diversion, was simply by writing, not by deed alone. If the words “consent and
But as already stated, the weight of the evidence is in favor of the fact that it was obtained just previous to the • commencement of the work, and on that basis it becomes - necessary to inquire what effect, in connection with the erection of the works, it will have in equity. The complainants seek to enjoin the defendants from any greater diversion than has been made since 1843, when the present-trunks or culverts were put in. These are two in number, three feet by four each, about thirty foot in length, and placed about fifteen inches below the average level of the • water in the pond. The canal is about three miles in length,. running from the pond on the north side of the river, oppo- - site the land owners on the south side, already mentioned,.. and emptying through a waste-weir and a tail-race into the river below. The canal was constructed thirty feet wide at. the bottom, and forty-three and a half feet at- the top, with an average depth of four and a half feet, except at the lower end, where it was probably more. There are two reservoirs - upon it of considerablejlimensions, and a guard bank on the river side along the canal, to protect it from freshets.. The present trunks or culverts were put in in place of two - sluice ways, covered over with about a foot of earth, forming, part of the embankment of the canal, which were a little;
How assuming, as stated, that the consent was obtained before the act of the legislature, which is according to the ¡weight of the evidence, there can be no doubt that the rwork was carried on, and the large expense necessarily .•attending it incurred, upon the faith of that paper. The .proof of its contents is satisfactory that it gave a right .and consent to build the dam for the purpose of a water .power company, and to divert the Raritan river, or so .much thereof as might be necessary for the accomplish- . ment of the water power. There is no evidence that it was ..sealed. It was merely a written paper, signed by the .owners. Theodore Frelinghuysen swears that he had it, ,.-examined it, and read it over carefully, critically, to see if dt was sufficient. He is, and was a lawyer at the time, and .although interested in the company, his truthfulness is be•yond question. His statement of the fact of the paper and its contents, is consistent with the fair inferences to be drawn .from the general facts and features of the case, consistent .with the evidence of Davis, who signed the paper, and .■consistent with what would naturally be inferred from the apparent acquiescence of the owners, without objection, in the progress of the work, all of whom (the owners who signed the consent) were living till after its completion. Of the accuracy of Theodore Frelinghuysen’s statement of the contents of the paper, so consistent as it is with all the probabilities of the case, I have no doubt. Its terms were
The written consent shows an intention on the part of those who signed it, that the projectors of the water power should expend their money, build their works, and divert the water of the river as far as necessary. The action of Gaston and his associates, before and after the incorporation, by the large outlay and magnitude of the works, (for in those days they cost from $75,000 to $100,000, the gates alone first erected costing about $1400,) shows that they, in good faith, relied upon that consent; and now to deprive them or their successors of the benefit of it, when it is necessary for the enjoyment of their property, would be so inequitable and unjust,(that the court will look beyond mere defects in the legal assurance of the right, and if possible prevent ' such a result. No compensation can be required in this case from the defendants, as it is evident that either none was intended in money, or if any was agreed on, that it must have been paid to the former owners, and such will be presumed after this lapse of time, there being no evidence to-the contrary. It is difficult, however, to resist the conclusion that the consideration to the owners for their consent was not money, but consisted in the taking down of the Dawes dam in the year 1841 or 1842, and thereby relieving much of their land from overflow, also in benefiting the fords,' and in addition thereto, the general benefit to the neighborhood by the improvement. The Dawes dam was actually taken down by the company previous to or about the time of the first diversion 'of the water, and there is strong ground, from the facts, to conclude that that act entered into the motive of the consent, and were it necessary to the rights of the defendants, it might well be held that.
Giving effect, then, to the consent as executed, the next inquiry is, how far has it been executed ? The decree limits it to the culverts of 1843, and now remaining. The great cost of the works was in the dam and canal; the culverts were but of trifling expense. As stated, they wore intended for a temporary purpose. They are only the means by which the water is carried from the pond to the canal, having no relation to the capacity of the works, and the size of which may be governed entirely by the needs of power from the canal. The license was to divert as much water as was necessary for the accomplishment of the water power. A very much smaller and less expensive canal would have answered for those culverts, if they were to be taken as the test of the execution. The water power ivas notoriously intended to encourage and build up manufacturing establishments at Earitan, and the works were erected to meet the expected demand. The measure of the execution of the license is the capacity of the dam and canal, as originally constructed, regarding the culverts only as a means of supply, according to the necessity of business, and liable to any change in their location or construction the better to enjoy the benefit of the dam and canal as originally built and completed, the equity being that the defendants shall, if necessary, have the full use of the expenditure made oil the faith of the consent within its terms and depending upon it. This, to my mind, is to bo regarded as the scope of the execution. If the equity of the defendants depended upon the presumption of a right by grant, based upon an adverse user of the water, then the extent of the actual user would alone be regarded, but in this case it depends upon the extent of the execution of a license. If, however, we should consider the mode of obtaining the water from the pond to the canal as any test of the execution, then the original gates should be taken as the measure in this cause. They were constructed of large size and probably sufficient for the full
The next question is, whether the same equities exist against the complainants as against those who signed the consent. An equitable estoppel will affect a subsequent purchaser to the same extent as his grantor, when he has had actual notice of the condition of things upon which it is based, or when the circumstances are such as to put him upon inquiry to ascertain the facts. The cases on this point are too numerous to cite; many are collected in the note to Le Neve v. Le Neve, 2 Lead. Cas. in Eq. 127. (See also 2 Am. Lead. Cas. 770, 4th ed.) Notice is- either actual or constructive, and what amounts to constructive notice depends much upon the facts of each case. The recent case of Hoy v. Bramhall in this court, 4 C. E. Green 563, well adopts the general rule “ that whatever puts a party upon an inquiry amounts, in judgment of law, to notice, provided the inquiry became a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding.” That case also accepts the rule of Wigram, Vice Chancellor, in Jones v. Smith, 1 Hare 43, that where the party has had actual notice that the property was in fact charged, encumbered, or in some way affected, the court has bound him with constructive notice of facts and instruments, to the knowledge of which he would have been led by an inquiry after the charge, encumbrance, or other circumstances affecting the property, of which he had actual notice; or, as stated in the note to Le Neve v. Le Neve, 2 Lead. Cas. in Eq. 160, gathered from the cases there cited, “ whatever is sufficient to direct the attention of a purchaser to the prior rights and equities of third persons, and to enable him to ascertain their nature by inquiry, will operate
Now, in view of these principles, the complainants and the grantors of such as did not purchase immediately from the representatives of the owners who signed the consent, had actual notice that a considerable part of the water of the river was diverted by the water power. The fact of the diversion, and the cause, they could distinctly see. That it was done by means of the dam and canal, and that several mills and factories were supplied by the water, was apparent. The canal was in sight of their lands, and dependent upon the river for its supply. The necessary effect of its use was to divert water therefrom, and considering its size and apparent design, the slightest drought would have induced the belief that it had not yet been used to the extent of its capacity. Having notice that the river was being diverted in this way, and the scope of the means by which it was done, they were in duty bound to ascertain by proper inquiry, the nature and extent of the right to do it. They failed to make inquiry when they should have done it in justice to the rights of the company, and for their own protection. The complainants, under the facts of this case, are in no better situation than those who gave the consent.
It was further contended, that the defendants had abandoned their right, if any they had, to divert more water than they had used through the present culverts. The act of incorporation allowed the company to divert only as much water as was necessary for the purposes of the act, and such also was the intention of the license. The diversion could not exceed what was reasonably necessary and proper for the time being to supply the demand. Any waste or diversion beyond the demand, would have been an infringement of the rights of tlio owners below the dam. They were entitled to the natural flow of the water, except only so far as the uses of the company undor the license would affect it. The non-user by the company beyond the exist
The non-user in this case is accounted for on the ground that the company were obliged to refrain from any use beyond the demand. They had no option to use or not, further than the limit of the demand for the time being, and an intention to abandon- any of their rights under the license as executed, cannot therefore, be drawn from a consistent use therewith, and a failure to violate its terms, and the provisions of the charter. The non-user in this case is peculiar. It is not a total non-user. The works were maintained and used, but the project was not as successful as expected, and the use was therefore only correspondingly limited, not given up. It is very different from where there is a total cesser of use, consequent upon a tearing down of works, or allow
The fact that the original gates were not rebuilt, but culverts of much less size inserted, is explained by the evidence that the effort to replace them, even of smaller dimensions than the first, was not successful on account of a storm, and that the sluiceways and culverts were built only for a temporary purpose, and as a sufficient means at the time for the probable demand. It is evident from the testimony that the company had no intention to abandon any right, by not immediately replacing the first gates. Had the original gates been replaced, the diversion, as already stated, could not have exceeded' the demand, and within that limit it could have made no difference to the owners below the dam, whether the diversion was through them, or the present •culverts. There is nothing in the case from which an intention to abandon the right to use the works, as executed under the license, can bo fairly drawn.
The remaining question on the merits is, whether the defendants should be enjoined from erecting their new gates, and extending their canal to them. The present culverts have always been, and are liable to obstructions by logs of wood, and rubbish, are out of view, and difficult to clear out and manage. Besides, the foundation is of quicksand, and the stone work about the gates is liable to fall, owing to the obstructions; there has been at times an insufficient .supply of -water. In order to obtain a good foundation, and to be relieved from the difficulty of the present culverts, the company have selected and purchased a site for new gates about ten chains above, where they can have shell rock for a foundation, and propose to extend the canal further, and to erect their gates. The point selected seems to be as near to the present head of the canal as practicable, to secure a good foundation. The gates, as proposed, will be two in number, and of the aggregate width of sixteen feet in the Hear; about half the width of the original gates. It will
The capacity of the new gates to divert water, with the canal extended, will clearly be within the limits of the capacity of the canal and dam as originally constructed, and also within the limits of the first gates. The extent of user must depend upon the demand, and the mere change in the mode of divex-sion does not prejudice the rights of the complainants. There is no present ground of complaint
On the merits, the decree of the Chancellor must be reversed, and the bill be dismissed with costs in both courts.
For reversal — Beasley, C. J., Bedle, Dalrimple, Depue, Kennedy, Ogden, Scudder, Van Syckel, Vail, Wales, Woodtiull. 11.
For affirmance — Olden.