Summary
In Hall v. Sterling Iron R. Co. (148 N.Y. 432) one of the questions presented for consideration pertained to the plaintiff's ownership of that right.
Summary of this case from Matter of HallOpinion
Argued January 28, 1896
Decided February 18, 1896
William B. Anderson for appellant. E.A. Brewster for respondent.
This action was brought to restrain the defendant from placing obstructions in the outlet of Mt. Bashan pond in Orange county, or the stream of water leading therefrom, and from doing any act which shall diminish or interfere with the free flow of the water from the pond through its outlet.
Mt. Bashan pond is a lake about a square mile in extent, fed by springs and surface water. At the northeastern end of the lake is the outlet, from which runs a stream in a southerly direction. In the outlet of the lake there is a dam with gates by which the flow of the water can be accelerated or retarded to suit the requirements of those entitled to the use of the water. About three miles below there is another pond of about fifty acres in extent known as the Little Dam pond. From this pond there is a flume through which water was conveyed to the Southfield furnace, now known as the Sterling furnace, and from thence by a tail race to the original channel of the stream. A short distance below the furnace and on the opposite side of the outlet there was located a nail factory and a grist mill operated under one management and known as the Monroe Works, which works were operated by the water flowing through the outlet. In 1811 one Peter Townsend was the owner of the Southfield furnace together with the lands upon which it was located, including Mt. Bashan and Little Dam ponds, and one Henry McFarlan was the owner of the Monroe Works together with the lands upon which they were located. On the 25th day of June of that year Peter Townsend and wife, in consideration of the sum of five dollars to them in hand paid, conveyed to Henry McFarlan "all the right or privilege of using or drawing off the water from a certain pond called Mt. Bashan pond, situate in the town of Monroe, in the county of Orange, near a nail manufactory of the said Henry McFarlan and others, called the Monroe Works, for the purpose of carrying on the said works, in such quantity as would be sufficient for carrying on and working the furnace situate between said nail manufactory and the said pond, called `Southfield Furnace,' occupied and owned by the said Peter Townsend and others, and for which purpose said water is now used and no further or greater quantity. Provided always, that the right so as aforesaid granted to the said Henry McFarlan, his heirs and assigns, of drawing off said water as aforesaid shall cease at all times whenever said furnace, called the Southfield Furnace, is in blast or making iron."
The trial court has found as facts that the plaintiff is now seized in fee and possessed of the lands upon which the Monroe Works, so called, were located; that he derived his title through sundry mesne conveyances from Henry McFarlan after the conveyance to him by Peter Townsend, and that the water power granted by the Townsend deed has by such conveyance, and as an appurtenance to the land, become, and is now, vested in the plaintiff; that the outlet of Mt. Bashan pond is a natural stream of water passing through the plaintiff's lands, which furnishes the water power for the propelling of the machinery of his factory. The court further found that, in September, 1891, the defendant, by closing the gate in the dam upon the stream above the plaintiff's property, and by forbidding and preventing the plaintiff from opening the outlet of the lake, deprived the plaintiff of the water power to such an extent that, some portions of the year, he could run his machinery only about a quarter of the time; and, as a conclusion of law, the plaintiff was entitled to an injunction.
It further appears that the nail factory was destroyed by fire in the vicinity of fifty years ago, and that the factory has never been rebuilt; that the grist mill was converted into a basket factory which afterwards gave place to a shoddy mill, and thence to a manufactory of wooden articles, which business is still conducting therein.
The first question presented for our consideration pertains to the plaintiff's ownership of the water right conveyed by Townsend to McFarlan. It appears that McFarlan and one Joseph Blackwell were co-partners engaged in conducting the Monroe Works, and that the same was purchased with the money of the firm. The title, however, was taken in the name of McFarlan, and so remained at the time of his death. It further appears that his executors, pursuant to a power contained in the will, conveyed an undivided one-half of the premises to one Hudson McFarlan, and the other undivided one-half, including the water grant in question, to the seven children and heirs at law of Joseph Blackwell whose death had preceded that of McFarlan's, and that subsequently the seven Blackwell heirs conveyed to Hudson McFarlan, through whom the plaintiff acquired his title. The only question pertains to the conveyance by the executors of the undivided one-half to Hudson McFarlan. The deed describes the lands upon which the works were situated, and grants them "together with all and singular the devices, buildings, rights, members, privileges, advantages, hereditaments and appurtenances to the same belonging or in any wise appertaining." The water right is not specifically mentioned or otherwise referred to. We think, however, that it is an appurtenance to the land and passes with it. As we have seen, the water flows through the natural outlet of Mt. Bashan pond. This water course passes through the plaintiff's premises. It is used in connection with the land, and cannot well be severed therefrom. It consequently is attached as an incident to it.
In Simmons v. Cloonan ( 81 N.Y. 557) it was held that a water right was an appurtenance to real estate, and that by a conveyance of the land the purchaser takes the same with all the incidents and appurtenances thereunto belonging. In Mudge v. Salisbury ( 110 N.Y. 415) GRAY, J., speaking with reference to a water privilege to run a grist mill, says that "it was made appurtenant to the land conveyed and attached as an incident to it." And in Huttemeier v. Albro ( 18 N.Y. 48, 51) STRONG, J., says: "It is a general rule that, upon a conveyance of land, whatever is in use for it, as an incident or appurtenance, passes with it."
It is now claimed on behalf of the appellant that the language of the grant by Townsend to McFarlan, properly construed, especially in view of the circumstances at the time that it was made, limited the use of the water to the Monroe Nail Works, and lapsed with the abandonment of those works. Whilst on behalf of the respondent, it is contended that the only limitation in the grant intended pertained to the quantity of water used and not to the character of its use. The question thus presented has already received the attention of our courts. In Cromwell v. Selden ( 3 N.Y. 253) it was held that under a reservation in a grant of land and water privileges of sufficient water to propel a grist mill the grantor is entitled to the use of the water for any purpose not requiring a greater amount than that reserved. HARRIS, J., in delivering the opinion of the court, says: "It is a general rule of construction, applicable to grants of water powers, that when the question arises whether, by a grant of sufficient quantity of water to propel a particular kind of machinery, the terms employed are used merely to indicate the quantity of water intended to be granted, or to restrict the use of the water to the machinery specified, the former construction is to be favored, when the language of the grant will admit of such construction. The grounds upon which this rule rests are twofold: First, it is more beneficial to the grantee, without being more onerous to the grantor, that he should be permitted to apply the water granted to any machinery he pleases, not requiring a greater amount of power than that specified in the grant. Secondly, it is supported by public policy. The interests of the community will generally be best promoted by allowing an unrestricted application of the power to such machinery as will be most profitable to the owner." In Olmsted v. Loomis ( 9 N.Y. 423) there was a reservation in a grant of a water privilege of so much water as was necessary for the use of a forge and two blacksmith bellows. It was held that the grant did not limit the use of the water reserved, and that the reference to the objects had regard to the quantity only. In Wakely v. Davidson ( 26 N.Y. 387) there was a grant of land, with the privilege of water to turn a fulling mill, when the same was not wanted for carding wool. It was held that the grant was not a limitation as to the purpose to which the water was to be applied, but was of the quantity to be taken. WRIGHT, J., speaking of the rule applicable in such cases, says: "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." In Comstock v. Johnson ( 46 N.Y. 615) there was a grant of a privilege of drawing water from a dam in sufficient quantity for the use of a carding machine and clothing works. It was held that the words used in the grant were to be taken as a measure of quantity and did not limit the use of the water to the particular machinery specified. And to the same effect is the case of Groat v. Moak ( 94 N.Y. 115) and Mudge v. Salisbury ( 110 N.Y. 413), to which allusion has already been made. We have thus particularly called attention to the cases in our own court, for we think that the rule therein recognized is founded upon both justice and public policy. It is said that there are numerous cases in the Eastern states in which a different conclusion has been reached by the courts, but in our own examination of those cases we have failed to discover any wide difference in views. True, the courts in those states have recognized the right of a grantee to limit the use that is to be made of a water right as well as the quantity of water to be used, but this right is also recognized by our own courts. It is a question of intention to be determined from the language of the grant and under the rulings of our courts if the meaning is doubtful that construction shall be given which shall best subserve the interests of the public by permitting the use of the water for any legitimate purpose which the owner may desire. There may be a slight conflict with reference to this view in two or three of the cases disposed of by the courts in our sister states, but in most of the cases we think their views are in harmony with our own. We only call special attention to that of Ashley v. Pease (18 Pickering, 268), in which it was held that where a grant is made of a water power, if it is left in doubt, whether it is a grant of a sufficient quantity of water to carry a particular kind of mill, making reference to such mill, to indicate and measure the quantity of water power intended to be conveyed, or whether it is a grant of the use of the water to carry such particular kind of mill only, the former construction is to be more favored, because, in general, it is most beneficial to the grantee without being more onerous to the grantor, and because such construction is most favorable to the general interests of the community. (See, also, Strong v. Benedict, 5 Conn. 210; Shed v. Leslie, 22 Vt. 498; Deshon v. Porter, 38 Me. 289; Sibley v. Hoar, 4 Gray, 222; Carleton Mills Co. v. Silver, 82 Me. 215; Albee v. Huntley, 56 Vt. 454; Garland v. Hodsdon, 46 Me. 511.)
Treating the question as one of intent, to be determined from the grant under the rule recognized by the authorities, it becomes necessary to consider the terms used. It grants the right of using or drawing off the water of Mt. Bashan pond for the purpose of carrying on the Monroe Works in such quantity as would be sufficient for carrying on and working the Southfield furnace, and no further or greater quantity. It will thus be seen that whilst the purpose is named the limitation is made to apply only to the quantity used. This is emphasized by the following provision, to the effect that "the right so as aforesaid granted of drawing off said water as aforesaid shall case at all times whenever the said furnace called the Southfield furnace is in blast or making iron."
Here again we have no limitation as to the character of the use, but a positive prohibition to the use of any of the water during the operation of the blast furnace. This, it appears to us, is the clear reading of the grant.
We do not feel called upon to interfere with the judgment, because it does not limit the use to eighty cubic feet of water per minute. The injunction authorized by the judgment follows the language of the grant.
None of the other questions presented require special attention.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.