155 Mass. 48 | Mass. | 1891
The plaintiff sues upon a contract by which he agreed to buy, and the defendant Thayer to sell, “ the Tatnuck Mill estate'. . . with the mill and other buildings thereon, . . . being the same real estate conveyed said Thayer by the Leicester National Bank . . . and by Abby K. Foster and ah, ... to which deeds and their records reference may be had for description, etc. The premises are now under written lease to said Smith from said Thayer, which expires July 31st, 1887, and that lease is not in any way to be affected by this instrument, but said Smith is to hold under it according to its terms until expiration.” The estate was on Tatnuck Brook, by the waters of which, with supplemental steam power, the mill was operated. Thayer acquired his title in the year 1880. In January, 1883, the city of Worcester, under the St. of 1881, c. 268, took all the waters of the brook at a point one mile above the estate, with a full right to divert the same, and all water flowing into the same, above that point, and to convey it into the city for the purpose of a water supply. The water-shed above this point was about three thousand four hundred acres, and between it and the mill about sixteen hundred or seventeen hundred acres. Three small brooks run into Tatnuck Brook between the point of taking and the mill. The city first diverted the water in 1883. It has not diverted all the water above the line of taking, but there is nothing to prevent the enlargement of its works and the actual diversion of all the water above that line. In July, 1885, the defendant leased the estate to the plaintiff at an annual rent of $3,000, which was to cease, pro rata, whenever there was not sufficient water for scouring, washing, and steam. When the contract sued on was made, on September 28, 1886, the plaintiff had been in possession as lessee for more than a year, and knew that the city had taken and diverted the water before his tenancy as stated. At the same date, the defendant’s application for damages for such taking and diversion was pending in
The agreement is to be so construed as to give effect to the intention of the parties, as ascertained from the instrument itself. But so to ascertain that intention the court is bound to take into consideration the circumstances attending the transaction, the situation of the parties, and all the circumstances affecting them and the property at the time, and which are supposed to be equally understood by both parties. Adams v. Frothingham, 3 Mass. 352. Simonds v. Wellington, 10 Cush. 313, 316. Commonwealth v. Roxbury, 9 Gray, 451, 493. Auburn Congregational Church v. Walker, 124 Mass. 69. When this contract was made the property was a water mill operated by the purchaser as lessee, and both parties knew what change had been made since the seller acquired his title in the right of the estate to have the whole Tatnuck Brook come to the mill. The rent was not to abate when there was no water for power, but only when it was insufficient for steam, washing, and scouring. The estate was known as Thayer’s Tatnuck Mill estate, and that designation in the contract must be taken to have well described the property, in its then known actual condition as to water rights. The point of taking by the city being above that at which the brook entered the estate, the property still had the right to all the waters of the brook at its point of entry upon the land. That formerly this right brought waters now diverted, as well as those which now constitute the brook at the