Kennedy v. Scovil , 12 Conn. 317 ( 1837 )

Bissell, J.

The questions of law growing out of the facts found by the court and reserved for our advice, arise principally upon the deed of the 8th of June, 1832, and the circumstances connected with that conveyance. That clause in the instrument, which is most intimately connected with the questions now before us, and to which our attention has been particularly directed, is in these words: — “Always provided, and this deed is given on condition, that the grantors are to have and retain the privilege of conveying water from said dam, through a conductor, similar to the one now in use, till the same shall arrive at the East end of the new shop aforesaid, and thence, either by a conductor, race or otherwise, to the old shop, East of the new shop, for the necessary accommodation and use of the old shop.” Upon this conveyance, and the facts found in the case, it is objected, that the present bill cannot be sustained, for the following reasons.

1. It is said, that under the above reservation in their deed, Bramará and Woodruff had no right to take water from the flume for the use of the lower mill.

2. Admitting they had the right, yet it was personal to them, and not assignable.

3. Allowing them to have had an assignable interest, it is still insisted, that the plaintiffs are not entitled toan injunction, because they are tenants in common with Scovil, one of the defendants, of the lower mill, and of the privilege in controversy.

These several objections will be considered in their order.

1. And in regard to the first, it may here be remarked, that the right of Brainard and Woodruff to one half of the dam and pond, is wholly independent of the reservation in their deed. They were owners of the whole ; and they never conveyed but a moiety for the use of the upper mill. Of the other moiety they, of course, remained owners; and had an undoubted right to one half of the water, to be taken, in some •way, from the pond. The question, then, is narrowed down to this: whether, by reason of the reservation in their deed, or otherwise, they had a right to take the water through the flume ? Suppose there had been no reservation in their deed ; how then would have stood the right? It is found in the case, that when the upper mill and flume were erected, and at all times before the 8th of June, 1532, the water for the use of the lower mill was taken from the flume, by means of a conductor therefrom, in the manner, and of the character, and for the purposes stated in the bill, and so continued until the acts complained of, were committed, by the defendants. Such was the manner in which the water for the use of the lower mill, was taken, when the conveyance in question was made. The grantors still retained the right to take a moiety of the water, for the use of that establishment. In what mode was it to be taken ? Would not the law imply, that it was to be taken in the mode’ in which it always had been taken ? And would the grantors have had a right to resort to any other mode ? Would they have had a right to erect a new flume ? It seems to us, that they would not; but that, in the absence of any stipulation, as to the mode, the irresistible inference would have been, that they not only had the right, but were obliged to take the water in the accustomed manner.

Does, then, the language of the reservation in the deed, vary the case? What did the parties intend, by the reservation, is the question • and for the purpose of ascertaining that intention, it is proper to take into consideration the condition of the property, and the circumstances of the parties in relation thereto. Strong v. Benedict, 5 Conn. Rep. 210. 1 Phil. Ev. 417. and the cases cited in the note.

It is very obvious, that it was not the intention of the grantors to divest themselves of any privilege appertaining to the lower mill, of which they still retained the exclusive ownership. It was not necessary for them to stipulate, that the lower mill should have the privilege of a moiety of the water, or that it should receive it in the usual mode ; for both these privileges it would have had, without any stipulation. And it surely was not the intention of the parties, that the reservation should work a prejudice to the existing right of the grantors. They are to have and retain the privilege of conveying water to the lower mill, in the mode specified, for its necessary accommodation and use. This language would certainly seem to imply very strongly, that some additional benefit was intended, to the lower mill; and that, in times of scarcity, it should enjoy, a priority in the use of the water. But however this may be, it is very clear, that the grantors meant to retain to that mill, all the privileges which it then enjoyed.

But it is said, that by the terms of reservation, the grantors are to convey the water, not from the flume, but from the dam; and it is insisted, that this language is to receive a strict and literal construction. Were we to yield to this argument, we should, as we think, and for the reasons which have already been given, do manifest violence to the intention of the parties. The argument assumes the fact, that the flume constitutes no portion of the dam: a position which may well be questioned. It is certainly used to confine, as well as to draw off the water; and it might as well be contended, that a waste-gate, used for drawing off the water occasionally, constitutes no part of the dam. But upon the construction contended for, other parts of this reservation are entirely senseless. The grantors are to retain the privilege of taking water from the dam — -a privilege, on the principle assumed, never yet enjoyed by them. The truth is, the words “pond,” “ dam,” and “ flume,” seem to be used, by these parties, as equivalent. And when we take into consideration the entire language of the reservation, in connection with the situation of the parties, and the former use of the water, we can entertain no doubt in regard to their intention. And this view of the case is strongly fortified, by the practical construction which the parties themselves have given to the grant. It is found, that never, until some time in the year 1835, was the right of the plaintiffs and those under whom they claim, to take water through the flume, denied; and that never, until that time, did the defendants claim the right to use the water in the flume, as they pleased : that, frequently, when the water was low, and was wanted for the use of the lower mill, Woodruff requested Allison, who had charge of the upper mill, to shut the gates and let the water pass through the conductor to the lower mill; with which request he always complied.

Upon these grounds, we are of opinion that this objection cannot prevail.

2. Had Brainard and Woodruff an assignable interest in this use of the water? It has been contended, that the clause ⅛ their deed, upon which we have already commented, is a res-ervat¡on? ancj not an exception: and several authorities have been cited to show, that a reservation in a deed, is to be most strictly construed. We do not deem it very material to enquire, whether the clause in question is a reservation, or an exception ; for we are decidedly of opinion, that, upon every principle of interpretation, Brainard and Woodruff had an assignable interest in this use of the water. That they had such an interest in a moiety of it, to be used in some manner, is unquestionable ; for, as we have seen, they were owners of the whole; of a moiety of which they had never parted with. The question, then, is reduced to this ; whether they had an assignable interest in this particular use of the water? The objection is, that the use is reserved to them, without naming their heirs and assigns. Now, if we are right in the ground already taken, that their right to this use of the water was perfect, independently of the reservation in their deed, and that such right is not impaired by the reservation, there is an end of the question. But let us, for a moment, examine the language of the reservation, and see what are the rights of the grantors, under that. It is true, that the right is reserved to them, without words of inheritance, and without naming their assigns. But it becomes material to enquire for what purpose the reservation was made. It was “/or the necessary accommodation and use of the old shop.’’ Of this they were the owners in fee simple ; and can it be supposed, that they meant to limit the use of the water, without which the establishment was of no value, to their own personal occupancy ? And can it be believed, that such was the intention of the parties to this deed ? The idea is opposed to every presumption, and to all probability. Are we, then, prevented, by any rigid rule of construction, from giving effect to the intention of the parties? We know of none; and we think this part of the case entirely free from doubt.

3. We enquire whether the plaintiffs are entitled to the relief sought by the bill ? The only objection interposed, in this part of the case, is, that the plaintiffs and Hezekiah Scovil, one of the defendants, are tenants in common of the mill, as well as the water privilege.

It has hardly been contended, that in no case, will a writ of injunction lie, in favour of a tenant in common, against his co-tenant. Such a position cannot be sustained. It is opposed, not only to the well established principles of chancery pro-_ ceedings, but to the authority of decided cases. A bill for an injunction is always addressed to the discretion of the court. Yet the exercise of that discretion is to be governed by some settled and known rules. The general principle is, that a writ of injunction lies to prevent a person from doing an act which appears to be against equity or conscience. 1 Mad. Ch. 104. And the writ may be obtained, by one tenant in common against another, to prevent a destruction of the joint property, and also to restrain malicious waste. Hale v. Thomas, 7 Ves. 589. 1 Mad. Ch. 122. 2 Swift’s Dig. 136. Hawley v. Clowes, 2 Johns. Ch. Rep. 122.

The only remaining enquiry is, whether the case before us falls within the general principle. And to show that it does, it can only be necessary to advert, very briefly, to the facts found by the court.

It is found, that the defendants, by means of a new orifice, made lower down in the flume, have almost entirely diverted the water from the plaintiffs’ works; and that they have denied, and do deny, the right of the plaintiffs to take any water for the use of the lower mill, by means of a conductor placed in the flume. It is further found, that, by means of these acts of the defendants, the plaintiffs are unable to operate their works more than about three hours in a day; and during a great portion of the time, not at all. Now, that these acts tend not only to injure, but to destroy the property, cannot admit of a doubt. A mill can be of no value, when the water, by which it is operated, is wholly diverted: and we all know, that a manufactory that cannot be operated more than three hours in a day, and that at intervals, cannot be operated to any purpose. It is of no possible value.

But it has been urged, that the remedy of the plaintiffs is by writ of partition. And suppose they have that remedy, and that the writ were now pending ; this would furnish no reasont according to the case cited from 2 Johns. Ch. Rep., why the present application should not be sustained: why the waste should not, in the meantime, be stayed. But how can this property be aparted ? Can the privilege of the water, the whole of which is necessary for carrying on the works, be divided? And how is this manufacturing establishment and its implements, to be set out in severalty 1 Will you give the trip-hamnrier m one . t0 another ⅛6 anvil; and to a third, the bel-]ows ? The property is, in its nature, indivisible; and it is a mockery in these defendants, after having ruined the establishment, to talk of partition. Upon the whole, we are of opinion, that the plaintiffs are entitled to the relief sought by their bill; and would accordingly advise the superior court to pass a decree, that the defendants be enjoined against preventing the plaintiffs from taking one half the water from the flume, for the use and accommodation of the mill below, by means of the conductor mentioned in the bill, or one similar thereto, which may hereafter be constructed.

In this opinion the other Judges concurred.

Decree for plaintiffs.