202 Pa. 65 | Pa. | 1902
Opinion by
The plaintiff and defendant are the owners of adjoining tracts of land in Whitehall township, Lehigh county. They derived title through a common grantor, Jeremiah Ritter assignee for the benefit of creditors of Thomas Bertsch. In the deed of the defendant is the following grant: “ Together also the sole and exclusive right for the owner or occupier of the said gristmill, their or his heirs and assigns forever, the use of the waters of the spring known as the Sand Spring, and the outflow, without any interruption or molestation whatsoever for the use of said mill; the outlet of said spring to remain in the same place as at present.” The plaintiff’s title contains the following reservation: “ Together also the use and right and liberty and privilege of the owner of the gristmill, known as Woodring’s mill, his heirs and assigns forever, the use of the water of the spring known as the Sand Spring, and the outflow, without any interruption or molestation whatsoever, for the use of said gristmill, and the outflow of said spring to remain in the same place as at present.” Sand spring issues out of the plaintiff’s land and Woodring’s mill is on the defendant’s land. The mill was operated by water power until 1883, when steam was introduced and was thereafter used in operating the mill. The natural flow of the water from the spring is over plaintiff’s land to Coplay creek, entering it about a quarter of a mile below the defendant’s mill. Thomas Bertsch carried the
This is an action of trespass brought December 28,1898, to recover damages from the defendant for illegally diverting water from Sand spring and using it for “ culinary, domestic and irrigating purposes.” The plaintiff alleges that under the deed to the defendant, the latter is restricted in the use of the water of the spring to running his gristmill and cannot use it for any other purpose. On the other hand it is contended by the defendant that under his grant of the use of the water, he can use it for any purpose connected with the working of the gristmill, and that that includes the use of it for domestic purposes at the private residence of the miller. It is claimed that such use of the water is consistent with the grant in the defendant’s conveyance and that the diversion of the water for that purpose is not an infringement of the plaintiff’s title to the spring.
The facts of the case are undisputed. The court below sustained the defendant’s contention and directed a nonsuit. In the opinion refusing to take off the judgment of nonsuit the learned trial judge says : “ There is vested in the defendant, by the grant, the exclusive right to the water, that is, all the water of Sand spring. The reservation and grant state that it is for the use of the gristmill, which at the time of the grant was, and still is on the premises now held by the defendant.
It is conceded that the rights of the parties to the water of Sand spring depend upon the interpretation of the grant to the defendant and the reservation contained in the plaintiff’s deed. No question of riparian rights arises in the case. The language of the grant and reservation is substantially the same, and in our judgment its construction is not attended with any difficulty. It is plain and unambiguous and the intention of the parties to the conveyance is manifest. It is therefore not necessary in aid of the interpretation of the deeds in question, to invoke the rule that the words of a grant are to be construed most strongly against the grantor. And it may be observed, as said by Mr. Justice Tenny in Deshon v. Porter, 38 Me. 294, that general rules of interpretation “ have no influence in a question of the construction of a deed, where the intention of the parties is clearly expressed in the written agreement made by themselves.” The defendant’s deed did not convey the water generally, nor any specific quantity of it, nor “ a sufficient quantity for mill purposes.” The words of the grant cannot be so interpreted. The defendant acquired the sole and exclusive right to use the water of Sand spring for the specific object named in the grant, to wit: “ for the use of said gristmill.” The grantee is therefore limited in his use of the water to the purpose specifically set forth in his deed. Such must be the interpretation of the grant and reservation in the deeds to the plaintiff and defendant, unless we ignore the language as well as the manifest intention of the parties as disclosed by it. The language of Judge Tenny in delivering the opinion in the case above cited is applicable here, using
Water “for the use of said gristmill ” clearly and unequivocally means that the water shall be used as the power in operating the mill. Such is the common and well accepted meaning of the language employed in making the grant, and it is therefore our duty to so interpretit: Schuylkill Navigation Co. v. Moore, 2 Wh. 490; Case v. Cushman, 3 W. & S. 546. The intention of the common grantor as well as of the grantees in the deeds was that the water of the spring should be given the owner of the gristmill for the purpose of running or operating the mill. It was not contemplated by either party to the grant that it should be used for domestic or any other purpose by the owner of the mill. The waters of the spring, in addition to a part of the water taken from Coplay creek, the parties supposed were necessary to run the mill. Hence the water of the spring was reserved from the grant of the land on which the spring appeared and was given to the owner of the mill for the purpose stated in the latter’s deed. There is no other apparent reason or necessity for the grant of the water to the one, and the reservation of it from the other. So far as is disclosed by the facts of the c.ase, the grantee of the mill premises did not need it for domestic uses at the time of the grant, and in fact it was not so used until the defendant diverted it for that purpose a short time prior to the bringing of this action and many years after the grant was obtained. This was practically a construction of the grant by the parties themselves adverse to the contention of the defendant. By explicit language contained in the grant, he has the right to take the water of the spring for a specific purpose and he is restricted in the use of the water to that purpose. We cannot by construction extend or enlarge the grant and defeat the clearly expressed intention of the parties.
We are of the opinion that while the defendant has the right under his grant to take the water of Sand spring and utilize it as a power for operating his gristmill, he cannot take all or any part of it for any other purpose. It therefore follows that the court below erred in refusing to take off the judgment of nonsuit.
The assignments of error are sustained. The judgment is reversed and a procedendo awarded.