
    Wakely v. Davidson et al
    
    The grant of land, with “ the privilege of water to turn a fulling mill, when the same is not wanted for carding wool,” the grantor then owning and operating a carding machine, and the reservation by him in a subsequent grant of “ water for carding machines and fulling mill,” are not a limitation of the purpose to which the water is to be applied, but of the quantity to be taken.
    A quantity of water equal to that used, at the time of the grant and reservation, for carding and foiling, may be used by those claiming under the grant and reservation for any óther manufacturing purpose.
    Appeal from an order of the Supreme Court granting a new trial, with stipulation for final judgment. Action to recover damages for the alleged unlawful acts of the defendants in using water from certain premises and water privileges mentioned in the complaint, and for a perpetual injunction against the defendants, and for a decree settling the rights of the respective parties to the privileges and premises in question.
    TUe cause was tried at a special term held in Tompkins county in April, 1856, before Mr. Justice Balcom, without a jury. The facts admitted by the pleadings and shown by the several conveyances introduced in evidence, were substantially these:
    Prior to March, 1818,-one William Cobb was the sole owner of certain premises, dam and water power on Fall creek, in the county of Tompkins, and he had on the mill property a carding machine, propelled by the waters of the creek, through a race-way leading from the creek. On the 18th March, 1818, • Cobb and wife sold and conveyed to one Samuel Wash a portion of the land connected with the mill property, and also a piece situate on the east bank of the race-way, sufficient to build a fulling mill oh, not exceeding 24 feet wide and 40 feet back, with the privilege of water to turn said fulling mill when the samé is not wanted for carding wool; ” and Wash immediately thereafter erected and commenced using the fulling mill, and he and his grantees continued to use the privilege of water to turn the fulling mill, according to the terms of his conveyance, until about the year 1850. On the 6th May, 1818, Cobb and wife sold and conveyed to William Hanford one and a half acres of the land connected with the mill property: “also, all the land the blacksmith shop stands on; and also the privilege of water sufficient to carry the trip-hammer in said blacksmith shop, when the same is not wanted by the parties of the first part, their heirs or assigns, for carding machines .and fulling mill; said water to carry said trip-hammer to be taken out to the lest advantage.’” On the 19th May, 1819, Cobb and wife conveyed to John C. Ewer his remaining interest in the mill property, being two acres of land, on which were the carding machine, building and site, excepting and reserving all the land and privileges theretofore sold and conveyed by the grantors. The carding machines continued to be kept up and run by Cobb and his grantees, and to have the entire and exclusive use and benefit of the first privilege of water; and the fulling mill continued to be kept up and run upon the premises granted to Hash by him and his grantees, and to have the full and exclusive right and privilege to use said water for the purpose of running the same, when not needed by the carding machine for the purpose of carding wool, until after the month of February, 1851. On the 23d of February, 1824, John C. Ewer conveyed to Hash the two acres of land containing the carding machines, building and site, in which conveyance the water privilege was described in .these words: “ Also, the exclusive right or privilege of water when wanted for carding, or at the season of the year for carding.” By this deed Hash became the sole owner of the fulling mill and carding machine privileges. On the 1st May, 1845, Hash sold and conveyed to Samuel H. Starr the land occupied by the fulling mill and carding machine building, “ together with the water privilege described in the deed to him from Cobb. ” Also,. the privilege of water for carding, the quantity of which and the time for using the same to be ascertained by reference to the deed from Ewer to Hash.
    
      On the 22d February, 1851, Starr sold and conveyed to Eos well Noyes the same property, referring to the deed from Nash to him for a description of the water privileges. Noyes soon after turned the establishment into a turning and cabinet shop. On the 1st of April, 1853, Noyes sold and conveyed to the plaintiff the same property, with similar phraseology in describing the water privileges,.as in the deeds from Cobb to Nash, and from Ewer to Nash. The plaintiff soon after converted the concern into an iron foundry and machine shop.
    On the 10th February, 1827, William Hanford (Cobb’s grantor), sold and conveyed to John Neil the same land and water privilege described in the deed from Cobb and wife to Hanford, who converted the establishment into an iron foundry; and about 1st April, 1853, he was succeeded by the defendants, who carried on the same business, and who had used, and continued to use, the water privilege granted by Cobb to Hanford, for the purposes of their foundry.
    The complaint charged that the defendants had no legal right or authority to use or occupy any greater quantity of water than was necessary to carry a trip-hammer, and only, and at no other time, to use the same than when it is not wanted for the use and benefit of the premises and privilege of the plaintiff, in sufficient quantity at all times to carry the carding machines and falling mill, as owned by Mm; and that the right of the defendants to use sufficient water to carry the trip-hammer, for the purpose of their foundry, is at all times subject and secondary to the plaintiff’s previous and exclusive right and privilege to use, at all times, a quantity of water sufficient to carry said carding mill and fulling mill, and as was formerly used for that purpose, for the purpose of driving the machinery and bellows of the plaintiff; yet, that during all the time the plaintiff had owned and occupied the premises and privileges, the defendants had, and still continued, daily, wrongfully to divert and draw off, and use for the purposes of their foundry, a much greater proportion of water from the race and creek than they are entitled to use, to the prejudice of the rights and privilege of the plaintiff, and so as almost daily to deprive the plaintiff of water sufficient to carry and drive his bellows and other machinery, although the bellows and other machinery require much less water, in quantity, to propel them, than said carding machine and fulling mill, or either of them. Judgment was demanded for $1,000 damages; also judgment of the court settling and determining the respective rights of the plaintiff and defendants to the water power, and a perpetual injunction against diverting the water privilege to which the plaintiff should be deemed tó be entitled.
    The answer denied all the allegations of the complaint in ■respect to damage, and claimed the full and exclusive right and privilege of water sufficient, from the race-way or dam, to carry the trip-hammer, in the blacksmith shop; for driving the machinery of their iron foundry at all times and all seasons, when- the same was not wanted by William Cobb and wife, or their grantees; for carding wool with and by said carding machine; or for said fulling mill; that the plaintiff’s privileges were special grants, limited, the one to carding, and the other to the business of a fulling mill, and under them the water cannot be applied to other purposes.
    The judge found and decided:
    1st. That the plaintiff had the right to take water- from the dam and pond mentioned in the pleadings, above the shops of the respective parties, sufficient to propel a wheel for a fulling mill, and also sufficient to propel a'wheel for a carding machine.
    2d. That in determining the quantity of water sufficient for the purpose aforesáid, regard should be had to the quantity of water used at the fulling mill and carding machine wheels which formerly were on or near the place where the plaintiff’s shop and foundry now stands, and to the manner such water was formerly drawn from the dam and pond.
    ' 3d. That the plaintiff had the right to use the quantity of water aforesaid at all times, for propelling his wheel at his machine shop and foundry mentioned in the complaint.
    4th. That the right of the defendants to take water to propel the wheel at their machine shop and foundry was subordinate to the aforesaid right of the plaintiff, and that the defendants had no right to take or use water from the dam and pond when it interfered with the said right of the plaintiff.
    5th. That on different days in the year 1854, prior to the commencement of this action, the defendants did so draw and use water from said dam and pond as tó interfere with the aforesaid right of the plaintiff; and that by reason thereof the plaintiff sustained damages to the amount of fifty dollars.
    6th. That the defendants had not done, or threatened to do, any great or irreparable injury to the aforesaid rights of the plaintiff which entitles this plaintiff to a protection by ' injunction.
    7tn. The complaint was dismissed as to all claims for equitable relief by injunction or otherwise, but retained so far as • to authorize the plaintiff to recover fifty dollars damages against the defendants, without costs.
    Judgment was entered in conformity to this decision; the defendants appealed to the court at general term, when the judgment was reversed and a new trial ordered.
    
      B. G. Ferris, for the appellant.
    
      M. Goodrich, for the respondents.
   Wright, J.

The right of the defendants to use the water power for driving the machinery of their foundry was subordinate as respects the carding and fulling mill privileges of the plaintiff, such as they really were. The single question, therefore, in the case, is, whether the plaintiff and his grantors were restricted in the use of the water to the fulling and carding business, or whether they might change such use; in other words, whether the grant of the fulling mill power, and the exception of the carding wool power, form a measure of quantity, without reference to the specific purpose for which the water was to be used. The special term held that the plaintiff was not limited to the use of the water for the particular business of carding wool, or that of a fulling mill, but that he had the right to use the quantity of water used at the fulling mill and carding machine wheels which formerly were on the site of the plaintiff’s foundry and machine shop, at all times, for propelling the wheel at such machine shop and foundry. The general term was opposed to this view, deeming that the plaintiff was confined to the use of the water for carding machines and a fulling mill, and could not use it for other purposes.

There is no finding of facts by the judge who tried the cause, except as to the interference of the defendants with the use by the plaintiff of a quantity of water sufficient to propel the wheels of a carding machine and fulling mill, in propelling the wheel of his machine shop and foundry, and the amount of damages sustained by such interference. The respective rights of the parties in the water power are consequently to be ascertained and determined by a reference to and construction of the grants, in connection with such extrinsic facts as are admitted by the pleadings.

In 1818, and prior thereto, William Oobb was the sole owner of the mill property and water power in question, and he had a carding machine on the property, operated by such power. In March, 1818, he granted to Samuel Nash (through whom the plaintiff derives title), of such mill property, a piece of land sufficient to build a fulling mill on, of specified dimensions, with “ the privilege of water to turn said fulling mill, when the same was not wanted for carding wool.” Cobb and Nash, therefore, when this deed was given, owned the entire property. Cobb had a carding machine on it, and Nash was about to erect a fulling mill, having purchased land for that purpose, and Cobb granted to him the privilege of water to operate such mill, when the water was not wanted for carding wool; that is, when it was not wanted for operating the carding machine then on the part of the premises retained by Cobb. At this time, neither the defendants nor their grantors had acquired any interest or right in the mill property or water power. In May of the same year, Cobb and wife conveyed to William Hanford (through whom any rights the defendants have'are derived) “all the land the blacksmith’s shop stands on, and also the privilege of water sufficient to carry the trip-hammer in said blacksmith’s shop, when the same is not wanted by the said parties of the first part, their heirs or assigns, for carding machines and fulling mill, said water to carry said trip-hammer to be taken out to the best advantage.” At this point of time there were three several rights in the water. Cobb had the first and exclusive right to it, when he wanted it for carding wool; Hash had the next right, and he could exercise it only when Cobb did not want the water for carding wool, or when there should be a surplus for that purpose;: and-Hanford had the right to use the water only when not “ wanted ” by either Cobb or Hash, or when there should be a surplus over the use of both. Cobb was not limited as to time. If it should prove that he wanted the water all the time, then neither Hash nor Hanford could use more than the surplus; and if Hash should use all not wanted by Cobb, then Hanford would be without its use. Both Hash and Hanford purchased with these contingencies in view. The exclusive right in the water for carding wool did not depend on any reservation. The grants of the water to Hash and Hanford were limited, first to, the former, for fulling, and then to Hanford, for his trip-hammer; and the carding wool power was excepted. It remained with Cobb with the like force and effect as if no grant had been made. In May, 1819, Cobb conveyed all his remaining interest in the mill property to John C. Ewer; and the latter, in February, 1824, conveyed ■the same property to Hash, by which Hash became the sole owner of the fulling mill and carding machine privileges. The rights in the water power were thus reduced to two; one belonging to Hash, who was entitled to the entire and exclusive use of the water, when wanted for fulling and carding, and the other to Hanford, who was only entitled to the water when not' wanted by Hash; and this expresses the relative rights of the plaintiff and defendants, the former having succeeded to the rights of Hash, and the latter to those of Hanford.

The question arises, whether the original owner of the power, either in his direct grant to Nash of the right to use the water for his fulling mill, or in the exception by such owner, both in the deeds to Nash and Hanford, of the exclusive use of the power when wanted for carding wool, intended to limit or restrict the privileges granted or excepted, that of Nash to the business of a fulling mill, and his own to that of carding wool; or whether the grant and exception are to be deemed absolute as respects the right to use the water for any purpose. The latter construction is undoubtedly to be favored, ' if the language of the grant or exception will admit of it; and even when the construction is doubtful, that is to be preferred which would give to the grantee in the one case, and to the grantor, in the other, a right to an unrestricted, rather than to a limited, use of the quantity of water granted or excepted. (Cromwell v. Selden, 3 Comst., 253; Olmstead v. Loomis, 6 Barbour S. C., 152; Fiske v. Wilbur, 7 id., 805; Borst v. Empie, 1 Seld., 33.)

- The words of the grant te-Nash are: “ Also the privilege of water to turn said fulling mill, when the same is not wanted for carding wool.” This was, in terms, the grant of a certain quantity of'water, a quantity sufficient to drive the machinery of a fulling mill; and there is nothing in the language employed to indicate, or from which it can be inferred, that it was intended td limit the privilege granted to the specific business of a fulling mill. It is to be deemed an absolute grant of the right to use a specified quantity of water for any purpose.,-- I do not understand the defendant’s counsel to deny That the language .of the grant favors the construction which would give it the character of an unrestricted grant as to use. Indeed a contrary construction of similar terms in the grant to Hanford, viz.: of “water sufficient to carry the trip-hammer in said blacksmith shop,” would deprive the defendants of any- right to use their privilege for operating the machinery of an iron foundry.

Cobb, the owner of the water privilege, excepted from his grant to Nash and also to Hanford, the exclusive right-to the use of the water for carding wool; or, in other words, granted to them only the privilege of using it when it was not wanted by him for carding. The defendants claim that this exception was intended to limit and restrict the grantor’s use of his own water privilege to the particular business of carding wool. But I do not understand .this to be the intent or effect of the exception. It is not to be presumed that the grantor would limit the use of his own privilege; nor was it of any importance to Hash and Hanford, when they took their grants, to what use the water should be applied to which they had no claim. The argument is, that the terms of the exception indicate a particular business, and furnish no standard for the measurement of the quantity of water to be used, but leaves the grantor to use more or less, according to the requirements of such business; that in such case, as it would be impossible to say that the business was named as a measurement of quantity, the other inference is to be adopted; that it was named as limitation of use; or, in other words, the privilege cannot be held to be an unrestricted one, for the reason that the language of the exception will not admit of that construction. I do not think this is so; but that the terms of the exception itself, construed in connection with the admitted fact that, at the time the grants to Hash and Hanford were given, the grantor was operating a carding machine by the Same water privilege, furnish a standard for measuring the quantity of water to be used. The terms were, “ When not wanted for carding wool.” Manifestly, not generally in the business of wool carding by an indefinite number of machines; that would require the whole volume of water; but when not wanted for carding wool by the machines then operated by the grantor. This is the construction put upon the language of the exception by the original grantors, both of the plaintiff and defendants, and is undoubtedly the correct one. The exception was of a sufficient quantity of water to run a carding machine. [It is the policy of the law to construe all grants and exceptions of water power as absolute, and without restriction as to the use of the water, unless it clearly appears from the conveyance that the contrary was. intended^.-'It does not so appear in this case in respect to the carding wool privilege reserved.

In 1824, therefore, when Nash became the owner of both privileges, he was not restricted to the use of the water for fulling or carding purposes, but had the right to use it for any purpose not requiring a greater power than was sufficient to propel the wheels of a fulling mill and carding machine. He could change the use to- driving the machinery of a foundry, if he pleased, and the defendants or their grantors could not complain, as no right of theirs would be impaired thereby, if the quantity of water used was no greater than his fulling mill and carding wool privileges gave him; and this was the right to which the plaintiff succeeded. The right of the defendants’ grantors, and their own, was subordinate to the right of the plaintiff and his grantor, Nash. Prior to, and at the commencement of this action, both parties had converted their water privileges to other uses than those expressed in the original conveyance; but this worked no change in their relative rights. The plaintiff was first entitled to sufficient water to propel the machinery of a fulling mill and carding machine, which he might use in propelling that of a machine shop; whilst the defendants might take water from the dam or pond, to drive the machinery of their foundry, provided they did not interfere with the rights of the plaintiff. The change, by-the plaintiff, of the use of his water privilege, as the defendants had done themselves, gave them no authority to interfere to his injury.

I understand this to have been the view taken at the special term of the respective rights of the parties, while, on the contrary, the general term deemed the plaintiff’s use of the water limited to the fulling mill and wool carding business, and ordered a new trial.

The order of the general term should be reversed, and the judgment of the special term affirmed, with costs.

Balcom, J., took no part in the decision; all the other judges concurring,

Ordered accordingly.  