Olmsted v. Loomis & Graves

By the Court, Pratt, J.

The effect of the deed of 1802, from Wales to Smith and others, was to convey to. them an absolute right to the surplus water, over and above what was necessary to cany the forge and two blacksmith’s bellows. Although the oil mill is mentioned, both in the deed and the collateral agreement, as the object to which the water privilege was to be applied, yet the grant is in terms absolute, being the water which is not wanted for the forge and blacksmith bellows. The conveyance of the site is also absolute in its terms, and the covenant on the part of the grantees to keep, one half the race in repair is not limited to any time, but is perpetual—all *159 clearly indicating that the parties intended that the conveyance of the privilege should be absolute and perpetual.

I am also of the opinion that the reservation was intended to be absolute, and that the forge and two blacksmith’s bellows are mentioned in the reservation not for the purpose of prescribing the use to which the water reserved should be applied, but simply as a measure of quantity. It is true that both the oil mill and the forge, in the contemplation of the parties at the time, were the immediate objects to which the water was to be applied ; but they did not intend to be restricted in its application to those objects.

As a general rule, grants or reservations in conveyances for Water privileges should be deemed absolute, unless it clearly appears from the conveyance that the contrary was intended; for such a construction is most favorable to the interests of the community. The water privileges furnished by the numerous streams in this country are continually increasing in value, and the interests of the public, as well as of the proprietors, are best subserved by the free and unrestricted application of such privileges to such machinery as the wants of the community may require. In the early settlement of the country saw mills, grist mills, and carding and cloth dressing mills for custom work were most in demand to supply the wants of the early settlers; and hence, in most of the early conveyances of water powers, allusion is made to some of that kind of mills. But they are rapidly going out of use, and cotton and woollen factories, paper mills, and other machinery adapted to the present business of the country, are taking their places. If, therefore, conveyances in which the former are mentioned in connection with the water privilege conveyed, are to be construed as limiting the use of the water, the alternative will only be left to the proprietor between continuing the application of the water to such uses or losing it entirely. In that case it would often continue to be applied to uses comparatively unprofitable, rather than to be wholly lost by the owner.

It is true that a given conveyance is to be construed so as to carry into effect the intention of the parties, when that intention *160 can be ascertained from the instrument itself. But when there . is doubt, that construction should be adopted which will render the grant absolute, rather than limited; and such is the general result of the later decisions. (See Ashley v. Pease, 18 Pick. 265 ; Bigelow v. Battle, 15 Mass. 313 ; 4 Coke, 86; Cromwell v. Seldon and others, decided in this court; 6 N. Hamp. 22; 21 Wend. 290 .)

But in this case a more important question is presented for the consideration of this court, viz.: Whether a case is made out by the allegations in the bill and proofs taken in the cause, to authorize this court to grant the relief prayed for in the bill. It is well established that a court of equity has concurrent jurisdiction with courts of law in cases of private nuisance. (Angell on Water Courses, 174. Eden on Inj. 269. 2 John. C. 165. Story’s Eq. Juris. §§ 925 to 930.) But it is equally well established that it is not every violation of the rights of another which may be ranked under the general head of nuisance which will authorize the interposition of the equitable powers of this court. Such interposition rests upon the principle of a clear and certain right to the enjoyment of the subject in question, and it must also be a case of strong and imperious necessity, or the right must have been previously established at law. (Angell on Water Courses, 175. Story’s Eq. 925 to 930. Van Bergen v. Van Bergen, 3 John. C. 282. Reed v. Gifford, 6 Id. 19. 4 B. & C. 8.)

To authorize an injunction there should be not only a clear and palpable violation of the plaintiff’s rights, but the rights themselves should be certain, and such as are capable of being clearly ascertained and measured. What are the rights of the plaintiffs as set forth in the bill ? If we have come to a correct conclusion as to the construction which should be given to the deed of 1802 from Wales to Smith and others, the plaintiffs and defendants have both the right to draw water from a common race or dyke; the plaintiffs sufficient to cany a forge and two blacksmith’s bellows, and the defendants the remainder; the - plaintiffs having the preference when there is not water enough for both. The plaintiffs alledge that their paper mill takes no *161 more than that quantity of water. Conceding that to be so, what is the injury complained of? It is that the defendants “ got their paper mill into operation about January, 1847, and have frequently and at all times when there was no more water in the dyke than sufficient to carry the plaintiffs’ mill, and also when there was not sufficient to carry said mill and the defendants’ mill, used and drew down the water in the dyke so as to obstruct, hinder, and prevent the plaintiffs from having sufficient water to carry their paper mill, retarding and hindering the plaintiffs from carrying on their business, and depriving them of the use of the water.”

This contains the whole grievance alledged against the defendants. There is no allegation showing what part of the time, if any, there was not sufficient water for both, nor the extent of the injury inflicted upon them. Nor is there any allegation that the defendants claim or insist on any rights inconsistent with those of the plaintiffs, or that there is any reason to apprehend a continuance of the encroachment upon the plaintiffs’ rights. For aught that appears in the bill, the alledged violations of the plaintiffs’ rights were merely the result of accident, or at most carelessness on the part of the defendants in using water from a common race; doing the plaintiffs no permanent or great injury. There is nothing to show that a suit at law would not afford the plaintiffs ample relief. But perhaps we ought to notice the allegation in the bill that the defendants had deepened their race; for perhaps that was also intended to be alledged as a violation of the plaintiffs’ rights. But there is no allegation that a race to the defendants’ mill, capable of drawing water from the bottom of the dyke, necessarily conflicts with the plaintiffs’ use of the water, or is not necessary to enable the defendants to use the water to which they are entitled, to the best advantage. We are therefore not authorized to say that the defendants by deepening their race have done wrong.

Let us' then assume that the allegations in the bill have all been clearly proved, do they show the plaintiffs entitled to the relief prayed for ? And that is all the plaintiffs can ask. They can claim nothing for any case they have made out by their *162 proofs different from that stated in their bill. The maxim allegata et probata is applied with strictness to cases in equity. (James v. McKernon, 6 John. 543 .) This leads us to an examination of the relief prayed for in the bill.

The prayer is that the rights of the parties may be decreed, and that the defendants may be restrained by injunction from drawing the water from the said dyke so as to deprive the plaintiffs of the use of the water, sufficient to cany the forge, as it was at the time of the conveyance from Wales to Smith and others, and two blacksmith’s bellows, and that the said plaintiffs may have the undisturbed use of the water for their paper-mill. How, as before observed, the bill does not show that the defendants contest or dispute these rights. And hence the only object or benefit of an injunction would be to give the plaintiffs a summary method of punishing the defendants for any accidental or careless, or wilful violation of their rights. We have been unable to find a case in the books where, under such circumstances, this extraordinary remedy has been granted. It would still leave the whole disputed point, to wit, the actual amount of water to which the plaintiffs are entitled, undisposed of. It would leave open for a contest upon affidavits, upon every application for an attachment for breach of the injunction, the fact whether the plaintiffs had actually used as much water as they were entitled to under the deed of 1802. If we should attempt to settle the rights by measurement, the bill furnishes us no aid. It alledges that the old forge used from 700 to 800 cubic inches of water, but at what head the column was to be measured it is not stated. If we turn from the bill to the proofs, the difficulties in the way of granting the relief are not diminished. The evidence does not show that the defendants have denied the rights of the plaintiffs as reserved in the deed of 1802; but the question between the parties seems to be the- amount of water necessary to carry a forge and two blacksmith’s bellows. When that amount shall be ascertained, there is nothing in the evidence which shows that the defendants are disposed to deprive the plaintiffs of that quantity. What that quantity is, or at least whether the plaintiffs have been deprived of it, a court *163 of law is quite as competent to determine as a court of equity. In fact the particular amount, for the purposes of the relief prayed for in the bill, it would not be necessary to ascertain. An approximation to correctness, in a court of law, would be sufficient. But should we attempt to ascertain the quantity of water to which the plaintiffs are entitled, the evidence is so conflicting that we should necessarily be left to conjecture. The plaintiffs’ witnesses vary about one half in their estimates of the quantity used for the old forge; and the defendants’ witnesses are about as conflicting. All who speak of the fact concur in saying that the old forge, owing to its being out of repair, used much more water than was necessary.

We do not construe the reservation as entitling the grantor to all the water which might have been used for the forge as it then was, but to all the water necessary for it when in reasonably good repair. What that quantity would be but few, if any, of the witnesses testified. The fact that the forge was changed into a paper mill, so soon after the conveyance of 1802 containing the reservation, that one of the owners of the oil mill assisted in its erection, and that the paper mill has been allowed to run so many years, undisturbed, affords strong presumptive evidence that the general use of the water for the paper mill, did not vary materially from the quantity previously used for the forge. Indeed, it is much more satisfactory than much of the testimony of the witnesses, in relation to the quantity used. But the wheels of the paper mills seem to have been changed in 1832, and the capacity of the spouts leading from the flume was increased, as I understand the testimony. Besides, it is also proved that in the year 1847, the flume and spouts to plaintiffs’ mill leaked considerably, so that much water was wasted. It is therefore impossible, from the testimony, to ascertain the precise quantity to which the plaintiffs were entitled, or to determine whether, at the particular times when there was a deficiency of water, the plaintiffs, by unnecessary leakage and otherwise, were not using more water than they were entitled to. But suppose it were proved that the paper mill could not draw any more water than the plaintiffs are entitled to use, *164 how can we protect them in the enjoyment of such right? Perhaps a point might be ascertained in the sides of the dyke, above which it would be proper for the defendants to draw, and the prism of the dyke below such point would be sufficient to convey the requisite quantity for the plaintiffs’ mill, so that by compelling the defendants to draw above such point, they could not interfere with the plaintiffs’ rights. But there is no evidence establishing such point; and if there were, it might turn out that the defendants could not use the surplus belonging to them to as good advantage, restricted in that manner, as they otherwise could.

It seems to us, therefore, that the difficulties in the way of attempting to restrain these parties, as the case now stands, within the limits of their legal rights, by process of injunction, are insuperable. In the language of the lord chancellor in the case of Risson v. Hobart, (3 Myl. & Keene, 169,) we may say, “What purpose could such an injunction serve ? It would give no information ; it would prescribe no (certain) rule or limits to the defendants. It could not, in any manner of way, be a guide to them if it did not operate as a snare. It would, in reality, amount to nothing more than a warning that if they did any thing which they ought not to do, they would be punished by the court; but it would leave to themselves to discover what was forbidden and what allowed. If after receiving such warning they acted upon the opinion of impartial men, and yet some damage followed, this court could not visit them very severely. The parties injured might then, indeed, recover damages at law, having leave to sue, but so they might of course recover damages if no injunction had issued, and without asking leave to sue.”

If the defendants had no right to draw water from the dyke it would come within the cases in the books, and would be free from difficulty. But this case falls far short of those cases where the rights of the parties were clearly ascertained, and where the courts of equity have interposed by injunction for the purpose of preventing great and irreparable mischief. No such irreparable mischief is apprehended in this case; no threatened *165 danger calls for such a remedy. A simple action at law to recover the damages, for any thing that yet has been made to appear, will be amply sufficient, not only to compensate the plaintiffs for the injury sustained, but to prevent a repetition of the wrongs on the part of the defendants.

We are, therefore, of the opinion, as well upon the matters of the bill as upon the proofs, that the bill should be dismissed. But as the difficulties in the plaintiffs’ case appeared upon the face of the bill itself, and the defendants, instead of demurring, have put in their answer and have gone through a long, tedious, and unnecessary litigation, the bill should be dismissed without costs, and without prejudice.

Decree accordingly.