
    Mills Power Company, Appellant, v. Mohawk Hydro-Electric Company, Respondent.
    Third Department,
    March 5, 1913.
    Water and watercourses—conveyance of water rights construed — parol evidence.
    In a suit for an injunction and to recover damages for trespass, it appeared that defendants’ grantors procured a conveyance of “all of the water rights and water privileges in and to the waters ” of a certain creek which flows on and over a certain tract of ten and one-half acres, together with the right of raising the said waters to the banks of the said creek, the right to build and erect a dam upon and across the said creek, but without interfering with or injuring the buildings of the parties of the first part, and also the right to lead and conduct the waters from the said dam over the premises of the parties of the first part. Subsequently the ten and one-half acre tract was conveyed through other parties to the plaintiff. The defendant erected a dam sixty feet high across the creek, at a point up stream about one mile north of the ten and one-half acre tract, and laid pipe from the dam to its power house one mile below said tract, and crossing the same. The plaintiff contends that the defendant, under the conveyance to its grantors, had a right to conduct water from á dam to he erected on the ten and one-half acre piece only.
    
      Held, that the conveyance to defendants’ grantors construed in connection with parol evidence that at the time of the conveyance the pipe line laid by defendants had been staked out, and that the grantor at the same time conveyed the right to defendants’ grantors to lead the water across his farm below the ten and one-half acre tract, gives the defendants the right to construct a pipe line from any dam built upon the creek at any point, and that the complaint should be dismissed.
    Appeal by the plaintiff, the Mills Power Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 27th day of January, 1912, upon the decision of the court, rendered after a trial before the court without a jury at the Fulton Trial Term, dismissing the complaint upon the merits.
    
      Andrew J. Nellis, for the appellant.
    
      Frederick Linus Carroll, for the respondent.
    Judgment unanimously affirmed, with costs, on the opinion of Justice Henry T. Kellogg at Trial Term.
    The following is the opinion delivered at Trial Term:
   Kellogg, J.:

There was conveyed to grantors of the defendant on the 3d day of June, 1908, certain rights in the language following:

All of the water rights and water privileges in and to the waters of Garoga Creek as the same flows on and over the lands described in a certain warranty deed received by parties of the first part from Cornell Leavitt and Annie Leavitt, his wife, dated October 10, 1904, together with the right of raising the said waters to the banks of said Garoga Creek; also the right to build and erect a dam upon and across the said creek, but without interfering with or injuring the buildings of the said parties of the first part, and also the right to lead and conduct the waters from the said dam over the premises of parties of the first part herein, the said lands over which said creek flows being situate in the town of Ephratah, Fulton County, State of Hew York.”

The original grantor of these rights, Henry Prime, was the owner of the lands mentioned in the description. They consisted of ten and one-half acres of land on the east side of G-aroga creek. In February, 1910, Henry Prime conveyed the same to parties through whom title thereto came to the plaintiff. The defendant erected a dam sixty feet high across the creek, at a point up stream about one mile north of this parcel of land, and set up a line of pipe seventy-eight inches in diameter from the dam to its power house one mile below such land, crossing the same, for the purpose of carrying water and obtaining a head for power. The plaintiff contends that under its deed the defendant had a right to conduct water from a dam to be erected on the ten and one-half acre piece only.

The water rights and water privileges of a riparian owner are chiefly comprehended in the right to have the same come down in a natural flow not unreasonably diminished in quantity or sensibly impaired in quality by the uses of upper owners. When a riparian owner retaining his title to land conveys all the water rights thereto belonging, he surrenders his right to have the water thus come down, and clearly contemplates a partial or complete diversion thereof at some point upon the stream above his property.

The right not to be flooded by the act of another inheres in the ownership of all land whether riparian or not, and forms no part of the water rights of land bordering upon water. A release from such a right is clearly not included in a grant of water rights, but must be expressly conveyed. He who conveys it must contemplate a flooding from a barrier erected in the stream at or below his own property.

Henry Prime made conveyance of all his water rights and also of a right to flood, but not higher than the banks of the stream. It would seem to follow that he had in mind the erection of a dam up stream and a diversion of water, and the erection of a dam down stream and a flooding. He also in express terms conveyed the right to build and erect a dam upon and across the creek. This grant was coupled with the condition that it should not interfere with or injure the buildings upon his land. If this provision stood alone it might well be construed to convey a right to build a dam only at or down stream from the land owned by him, for by its erection at no other point could a dam injure "the buildings thereupon. In view of the provisions of the deed already mentioned, however, it would not be a construction repugnant to the meaning of this clause were it held that the grantor intended a conveyance of a right to erect a dam up stream or down stream, as the grantee chose; the right to a dam down stream being limited by a condition relating to its height. It is clear that a case is presented where a just construction would be assisted by a knowledge of the facts surrounding the making of the deed.

It has been said, after the pattern of Lord Bacon, times without number that “ a patent ambiguity ” cannot be “ holpen” by evidence “extrinsical.” It has been said an equal number of times that the clear meaning of a written instrument cannot be contradicted or explained by parol evidence. The explanation of these pronouncements, the apparent effect of which would be to exclude the use of all parol evidence in the interpretation of a written instrument, lies, in the distinction not often noted between the intention of a grantor and the meaning or sense of his words. An intention resides in the mind; words do not contain it or embody it; neither do they carry it or transport it as from the mind of “A ” to the mind of “B.” They are mere signs by which there is set in motion that thought in the mind of “B” which was in the mind of “A.” The mental intent as to subject, object and terms of a gift can never be supplied where it did not exist. If the words of an instrument clearly show an indefinite purpose on the part of its maker parol proof cannot define it. In this sense a “patent ambiguity” can never be helped. As if “A” gave “ one of his houses ” to “ one of his sons,” there is indicated by clear words an absence of definite intent in the mind of the giver concerning subject and object. Words, however, may be used in a general or special sense, according to the general habit of the public, or the special habit of the user. They may have a particular meaning according to the particular circumstance of their use. It is the particular sense in the particular case of the particular user which is important, for it is not the intention of the public but of the 'giver which matters. He may give to his son “John” having only a son “James” and by the former according to his peculiar habit mean the latter. He may give “his farm” having two. If he said “ one of my farms” it would be ineffective because he makes no choice between the two; the existence of both being recognized. Nevertheless “my farm” may under the circumstances take on the meaning of a particular farm. Always the special use and sense of words may be inquired into. If there exists a definite intention as to subject, object and terms of giving, and word signs are used for its expression which, though in themselves obscure, in the light of a special habit on the part of the user or the special circumstance of their use, clearly determine in the mind of the reader the thought of the writer the instrument is an effective writing for the purpose. It is not to dispute a clear meaning but to provide one that the special use or circumstance is inquired into. In the statement that “where the clear meaning of words establish a doubt in mental purpose extrinsic proof cannot be used ” the two rules against the resort to such proof (1) in the case of a clear meaning, and (2) in the case of a clear ambiguity are rendered reconcilable.

In the case of Petrie v. Trustees of Hamilton College (158 N. Y. 458) a particular use made of words employed in the negotiations for a conveyance of water rights was considered and held to control the meaning of the same words in the deed though having a tendency to contradict their apparent meaning. The instrument conveyed “ the waters of Kirkland Glen brook.” There were two brooks upon the grantor’s land which had no name. The grantee in the colloquy before the grant said he would name both streams “Kirkland Glen brook.” The deed was held to convey the waters of both brooks instead of one as expressed in the deed.

.In the case before me these circumstances attended the grant: Mortimer Everest, the grantee, had previously to receiving it obtained nearly all the water rights along Garoga creek from above the land of the grantor (the ten and one-half acre piece) down to the Mohawk river twenty miles distant. In April, 1908, two months before the grant was made, a pipe line course was surveyed out which began at about the site of the present dam, ended at the location of the present power house and passed by the ten-acre piece a short distance to the east thereof. Brush was cut and stakes driven at frequent intervals along the line. Of this survey Henry Prime, the grantor, must have heen well aware. He owned also a farm below the ten-acre piece. On the very day and at the very time he granted the water rights in question he made a contract with Mortimer Everest giving him the right to conduct the pipe line across such farm. How, such was the elevation of the Prime farm above the ten-acre piece that no line of pipe across it could convey water from a dam built on or below the ten-acre piece unless the height of the structure was 165 feet and its length 2,000 feet. Such a dam would raise the waters of G-aroga creek above its banks and flood the buildings upon the ten-acre piece to which, under the terms of the grant in question, no injury might be done by the erection of a dam. '

This evidence does not contradict the plain meaning of the grant. It enlarges the horizon of the interpreter. From believing that he is dealing with an ordinary case of a small power dam to impound water between the banks of a stream and immediately to return it to the stream at the dam, he finds that he may be considering a case where a great reservoir and the complete diversion of the water of a stream for miles of distance are contemplated. The opening words of the description immediately take on great significance. “ All of the water rights ” is seen to be not an unnecessarily comprehensive expression, but one which in its widest sense, including therein the complete diversion of every ounce of water in the stream, was advisedly and deliberately employed. When the grant is construed in the light of the facts so proven, that at the time a pipe line two miles long had been staked upon the ground having its termini one above and one below the ten-acre piece, that the grantor at the túne he conveyed the right to conduct water across such piece also conveyed the right to lead the same across his farm below, a thing impossible where the water taken from a dam upon the ten-acre piece or below without enormous expense and without doing an injury prohibited, it is entirely clear that the words of the deed are used to convey a right to construct a pipe line from any dam built upon the stream at any point including a pipe line across the ten-acre piece leading from a dam above to a power house below as the same is now installed.

For all these reasons the complaint is dismissed, with costs.  