Scovil v. Kennedy

| Conn. | Jul 15, 1841

Waite , J.

The plaintiffs have brought their bill, averring, that they are entitled to the use of one undivided moiety of a certain stream of water for the accommodation of their mill, and the defendants and Scovil are the owners of the remaining moiety, to be used for the accommodation of another mill, and praying for a partition of the same.

This partition is opposed, by the defendants, upon two grounds. They claim, in the first place, a prior right to use the water; and secondly, that the property is of such a nature as to be incapable of a division, without great injury to them.

1. The first claim is founded upon the reservations contained in the deeds of Giles Brainard and Hiram Woodruff. But those reservations are to be taken in connexion with the other parts of the deeds. The fair construction to be given them, is, that the grantees were to have one half of the water, and the grantors the remaining half, with the privilege of carrying that half, across the premises granted, to the shop retained by the grantors.

This construction is in conformity to the opinion which we have heretofore expressed. Kennedy & al. v. Scovil & al. 12 Conn. Rep. 323. And a different one might, at certain times, render inoperative the grants; as the whole of the water might be required for the necessary accommodation of the lower shop. But if the reservation is confined to the conveyance of the water, effect will be given to all parts of the deeds.

2. With respect to the other objection, it seems to be very well settled, that the difficulty of making a partition, and the inconveniences resulting to the other tenants, furnish no sufficient reason for not making a division. Baring v. Nash, 1 V. B. 555. Warner v. Raynes, Amb. 589. In the case of Parker v. Gerard, Sir Thomas Clark, master of the rolls* said, that such a bill is matter of right ; and there was no instance of not succeeding in it, but where there was no proof of title in the plaintiff; and, referring to the case of Warner v. Raynes, added, that in that case, the strongest arguments of inconvenience were used, but did not prevail. Amb. 236, So Lord Chancellor Loughborough, speaking upon this subject, remarked, that it was not for the court to say, that one party should not hold his part of the estate as he pleased, Calmadyv. Calmady, 2 Ves.jun. 568. 570.

Although a partition here will be attended with considerable trouble and inconvenience to the parties, yet according to rules now well established, we cannot, on that account, say, that the plaintiffs’ prayer for a partition shall not be granted.

3. It is farther claimed, that if a partition ought to be made, it ought not to be in the manner recommended by the committee. And we are inclined to think, that this objection ought to prevail. It is apparent, that according to that mode, the water, at certain times, must be unequally divided ; and we are not satisfied, that upon the whole, it would produce equal benefit to both parties. That mode obtained the approbation of only a majority of the committee.

They have stated in their report, other modes of dividing the water. The plan of dividing the pond into two equal reservoirs, by means of a longitudinal dam or dyke, would seem likely to produce the greatest equality. But the expense of such a division would be so great, that that mode is neither recommended by the committee, nor insisted upon by either party in the argument.

The other mode stated by the committee, is, to divide the water, by means of equal orifices at the same level. Although a majority of the committee say, that this plan would be attended with so much expense and difficulty that they cannot recommend it, yet the superior court has found, that this expense would be inconsiderable in comparison with the disadvantages attending a partition as recommended by the committ ee

Upon the whole, we are inclined to think, that, in view of all the circumstances, this mode is better calculated to do justice to the parties than any other which has been presented to our consideration. But as the committee in their report have not stated of what dimension those orifices ought to be, but only that the orifices might be made equal and of the same level, it will be necessary to send the case again to a committee to determine these facts. Upon examination and enquiry, they may ascertain of what size, form and level they ought to be made.

4. If partition is to be made, there can be no question but that the injunction against the plaintiffs, granted in the former case, ought to be dissolved.

Our advice to the superior court, therefore, is, that partition be made between the proprietors of the upper and lower works, by constructing one or more orifices in the flume, at the upper works, of equal area in the whole with the orifice at the lower works, and upon the same level, under the direction of a disinterested committee, to be appointed by the court; and that, upon the acceptance of the report of such committee, the injunction be forthwith dissolved.

In this opinion the other Judges concurred.

Partition decreed.

Injunction dissolved.