Warner v. Cushman , 82 Me. 168 ( 1889 )


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  • Vírgin, J.

    On February 25, 1868, one Bartlett and one Chase owned and occupied the entire water privilege on the lower dam across the small stream at North Paris. On the north end of the dam was a saw mill and on the south end was a shingle mill which contained a shingle machine, bolting saw, splitting saw, planer and threshing machine with one water wheel.

    On the above date Bartlett & Chase conveyed the saw mill to Warner (one of the plaintiffs) “with the right of use of all the water not necessary in driving the wheel, or its equal, now used to carry the machinery in the shingle mill, — meaning to convey a right to all the surplus of water not required for the shingle mill or other equal machinery.”

    By subsequent conveyances the plaintiffs obtained the title to the saw mill and its lights and privileges and the defendants the shingle mill and its rights and privileges, — the plaintiff Warner testifying that the whole plant, including the various kinds of machinery in it, was called the shingle mill.

    The action is case by the owner of the saw mill, and the decision of the controversy depends upon the construction of the clause in the deed. On recurring to the unambiguous language there used, we entertain no manner of doubt that the parties did not thereby intend to restrict and confine the use of the water to the specific purposes of driving a shingle machine; but rather to fix the measure of the quantify of the water to be used by that *172mill called the “shingle mill.” The words, “necessary in driving the wheel, or its equal, now used to carry the machinery in the shingle mill,” remove all possible doubt on this point when considered in connection with the fact that the “shingle mill” plant included various kinds of machinery in addition to that used for the manufacture of shingles. We think, therefore, that the defendants have an absolute and prior right to the use of the quantity of water necessary in driving “the wheel or its equal now [then] used to carry the machinery [then] in the shingle mill,” to' be used by them for any purpose to which they might deem it for their interests to appropriate it. Wyman v. Farrar, 35 Maine, 64; Davis v. Muncey, 38 Maine, 90; Deshon v. Porter, 38 Maine, 289; Garland v. Hodsdon, 46 Maine, 511, 515; Covel v. Hart, 56 Maine, 518; Hines v. Robinson, 57 Maine, 324, 333, and cases there cited. Blake v. Madigan, 65 Maine, 522, 529.

    If the defendants, with their new iron wheel consumed more water than did the old five feet center-vent wooden wheel with its one hundred and seventy inches of water, to the injury of the plaintiffs, then the defendants must respond in damages.

    The defendants put in an iron turbine wheel, set it two feet lower than the old one, thus obtaining two feet more head. They also substituted a new shingle machine for the old one and added a circular saw for sawing • boards and a tub-machine, — all driven by the new wheel, but not all at the same time. On the issue of fact whether or not the new wheel consumes more water than the old, the testimony was somewhat conflicting; but the overwhelming weight of it was in favor of the defendants. Outside of the theoretical views of experts, absolute trial showed that the old spout drew down the water in the reservoir an half hour quicker than the new one used in driving the neAv Avheel.

    The burden of the plaintiffs’ complaint is, that since the defendants added their saw for manufacturing boards, the plaintiffs have had no patronage for sawing boards, for their customers have gone to the defendant’s mill. But if the defendant, as already seen, had the lawful right to add the board saw to his mill and to operate it so long as he used and consumed only his legal quantity of water, then although the plaintiffs lost *173their former patronage, it is damnum absque injurié, — a loss to which all competitors in the same kind of business are subject to, but not a legal injury for which an action will lie. It is only another instance whereby the old mode of doing business has succumbed to modern improvements.

    Judgment for the defendants.

    Peters, C. J., Walton, Emery, Foster and Haskell, JJ.,' concurred.

Document Info

Citation Numbers: 82 Me. 168

Judges: Emery, Foster, Haskell, Peters, Vírgin, Walton

Filed Date: 12/11/1889

Precedential Status: Precedential

Modified Date: 9/24/2021