Fowler v. Kent , 71 N.H. 388 ( 1902 )

The limitations of the respective rights of the parties to the water-powers created by the main and wing dams largely depend upon the deeds that passed between Greenough and Emmons, Lincoln, and Mason, in 1833. Before considering these deeds it should be noted that whatever water was used at the shoe-factory privilege necessarily passed into the lower pond, and thereby became available for use at the plaintiffs' privilege. In the view that is taken of the deeds of 1833, it is immaterial whether more or less water was used at the shoe-factory privilege, and consequently no attempt is made to construe the Greenough-Kennedy lease. By the deed to Emmons, Lincoln, and Mason, Greenough conveyed the easement of having and maintaining that portion of the wing-dam that is south of the thread 'of the stream (Kent v. Taylor, 64 N.H. 489) upon his land and of flowing the land owned by him situated between the two dams. The deed also contains unambiguous evidence that the parties understood and intended that the "waste water" should be turned into the lower pond for use at the factory privilege. This was to be accomplished by maintaining the easterly end of the main dam of sufficient height for the purpose. In effect, the easterly end of the main dam, maintained at a height sufficient to turn the waste water into the lower pond, was constituted a part of the wing-dam. Whatever right existed to use the "waste water" or any portion of it at the privileges on the south side of the river, together with the right to have the sawmill stopped not exceeding one month in each year if the water was needed at the factory privilege, was conveyed to Emmons, Lincoln, and Mason and their heirs and assigns by means of the estoppel arising from Greenough's agreement. Burbank v. Pillsbury, 48 N.H. 475, 476; Foster v. Foster, 62 N.H. 46, 55. Although this agreement when considered by itself seems to be personal, yet when considered in the light of its connections and of the circumstances surrounding the transaction it appears to have been intended to bind Greenough's heirs and assigns as well as himself. The special covenants are expressed in this language: "I hereby for myself and my heirs and assigns covenant and agree with the said Emmons, Lincoln, and Mason and their heirs and assigns that they shall and may hold and continue the said wing-dam forever without interruption from me or my heirs or assigns. Also, I agree to keep the dam from the winged dam to the southerly bank of said river of sufficient height to turn the waste water into the factory [wing] dam; and in case water is needed for t. he factory, I am to stop the sawmill not to exceed one month in each year." In the first covenant he fully expressed the capacity in which he acted, — "I, . . . for myself and my heirs and assigns." The second covenant is connected with the first by "also," naturally indicating that the pronoun was there used in the same comprehensive sense. The covenantees are not mentioned in the second covenant, but evidently the agreement there stated was with "Emmons, Lincoln, and Mason and their heirs and assigns," the same as the one in the first covenant. Apparently, the scrivener saw no occasion for a repetition of these particulars in the second covenant, following immediately as it does the first, and being connected therewith by a word signifying a continuance of the same general purpose with reference to the extent or duration of the agreement.

A consideration of the surrounding circumstances confirms this view. The deeds were exchanged by the parties in settlement of a controversy respecting their water rights. The factory privilege was dependent upon the use that was made of the main dam. If all the water of the river was diverted to the south side by this dam and there used, the factory privilege would be worthless. The deed from Emmons, Lincoln, and Mason to Greenough shows that the grantors had, or pretended to have, a right to draw water from the main dam, or to have the dam changed in form or construction so that it would allow a larger flow of water to their pond. It does not appear that this right, whatever it was, was limited in duration to the life of Greenough or to the happening of any event. If they had no contractual right in the dam, they, as riparian owners, could require it to be so used as not unreasonably to divert the water of the river from their property, unless they or the prior owners had parted with the right, which is not suggested. It is highly improbable that they would release permanent rights or supposed rights in the main dam in exchange for the right of having the waste water turned into their pond during Greenough's lifetime only. On the other hand, it is reasonable to suppose that the rights, whether actual or pretended, which the parties understood they were exchanging possessed the same quality as to permanency — Greenough acquiring an estate in fee in whatever rights in the main dam were conveyed to him by Emmons, Lincoln, and Mason, and they acquiring a like estate in the right to the waste water the same as to the easement of maintaining the wing-dam and flowing Greenough's land. The right of maintaining the wing-dam would be useless unless there was water to be held back by it; and, so far as appears, after the exchange of the deeds of 1833 the only right Emmons, Lincoln, and Mason had to have water pass from the upper to the lower pond was the right afforded by Greenough's covenant above mentioned.

The contemporary construction of the deeds by the parties and their successors in title furnishes additional, convincing evidence on this. point. The case states that, "from 1833 to 1865 the water rights and rights and obligations as to the dams were conceded, claimed, and enjoyed by the parties and those holding under them in accordance with the above-mentioned settlement." No doubt is entertained that Greenough intended to bind himself, his heirs and assigns, by the second covenant the same as by the first, and that his grantees so understood it; and the deed is construed accordingly. The record of the deed gave subsequent purchasers of rights in the water-power created by these dams notice of the existence of this "waste water" right and its ownership. Burbank v. Pillsbury, 48 N.H. 475, 477.

By "waste water" the parties evidently meant "all the water river except that used by Greenough at the gristmill and sawmill." This is the interpretation that the parties and their successors in title placed upon the words from 1833 to 1865. The use of water at these mills was not unlimited in extent. It was such extent of use as had previously customarily been made; such as was reasonably necessary for the beneficial enjoyment of the mills as they then severally existed. Dunklee v. Railroad,24 N.H. 489; Horne v. Hutchins, ante, p. 117. After the deeds of right to use more water from the upper pond than was required for the gristmill and sawmill privileges, and of course could convey no such right to others.

When the ownership of the property and water privileges on the south side of the river was severed in 1849 by the deeds of Bartlett to Currier and Bartlett to Favor, there was attached to the gristmill a water right described thus: "the privilege of drawing the water in the same manner it has been accustomed to run, meaning the first right to draw water for the use of the mill as it now is." This language implies that in drawing war, or it was accustomed to run in a certain manner — that is, through certain orifices, water-wheels, etc., which necessarily would limit the draft and govern the quantity. The same idea is expressed by the words "for the use of the mill as it now is" — the use of water to the extent required by the mill as it then was. This language was used to describe the quantity of water that went with the privilege rather than to limit the manner in which, the purpose for which, or the place at which the water was to be used. If this were doubtful, the very great improbability that the parties would undertake to control the particular devices by which the water should be drawn and the particular uses to which it should be applied would remove the doubt. It would require very explicit language to overcome the natural inference that a person would not accept a deed of a mill privilege subject to the condition that his water rights should become forfeited if any change was made in the manner, purpose, or place of use. Whittier v. Company, 9 N.H. 454; Dewey v. Williams 40 N.H. 222. Dow v. Edes,58 N.H. 193; Fuller v. Daniels, 63 N.H. 395, 397.

Bartlett's deed to Currier estopped him from asserting a right, as riparian owner, to use the water as it passed land retained by him, for it could not be so used without depriving Currier of its use. In fact, Bartlett's water rights had been changed previous to the date of his deeds, from the ordinary-rights of a riparian owner upon a river to the rights of an owner in common with others of a mill-pond. He conveyed to Currier, not riparian rights simply, but an interest in riparian rights which pertained to land owned by himself and others and which had previously been converted into a water-power.

It appears that the quantity of water which Currier became entitled to under Bartlett's conveyance was 980 square inches under a twelve-foot head. He acquired the first right to draw this quantity of water from the portion that could be rightfully used on the south side of the river after the delivery of the deeds of 1833. The right was independent of and superior to the water rights conveyed to Favor with the sawmill. Favor's rights were only "the rights of using the water and flowing land" which Bartlett possessed after his conveyance to Currier; and Bartlett reserved a portion of these rights. A failure by Currier to use the water would not give Favor a right to its use, any more than a failure to use the land to which the water right was attached for the time being would give Favor a right to use that. It was immaterial to Favor and Bartlett whether the 980 inches of water were drawn from the easterly end of the main dam or from its northerly end, or whether it ran over the dam into the lower pond. Neither of them could receive any benefit from having it used at the gristmill privilege. It is quite certain that Bartlett had no intention to limit its use to that portion of the dam. See Whittier v. Company, supra.

Draper Berry subsequently became the owners of the land and rights conveyed to Currier by Bartlett; and in March, 1865, they conveyed to Forbes Cass all their water right over and above 336 square inches; that is to say, the first right as against the other owners on the south side of the river to draw 664 square inches of water from the upper pond under a twelve-foot head, or the right to have such water remain in the pond and flow over the main dam into the lower pond. Forbes Cass conveyed one half of the right thus acquired to Page, subject to an agreement on his part that he would turn the water into the lower pond. The plaintiffs are owners of the factory privilege, the easements and water rights conveyed by Greenough to Emmons, Lincoln, and Mason, and the water rights owned by Forbes Cass after their conveyance to Page. The referee appears to have found that such was the plaintiffs' title and to have correctly interpreted the deeds out of which the title arose, and to have based his findings in favor of the plaintiffs upon the count in the writ for a diversion of water upon the above-mentioned findings and interpretation. The plaintiffs are entitled to a judgment upon these findings.

The foregoing questions, or questions in all respects like them, were considered and decided in Taylor v. Blake, 64 N.H. 392, although it does not so appear in the report of the case. The reserved case (see 159 Briefs and Cases 55) shows that the plaintiffs were tenants of the owner of the property now owned by the plaintiffs in this case, and that the defendant was the owner of a tract of land on the south side of the river above the main dam, together with the water rights reserved by Bartlett in his deed to Favor. The action was case for diverting the water from the plaintiffs' mill. The same deeds and substantially the same facts as in this case were before the trial court, and the finding was as follows: "The plaintiffs have a title and right to the water not customarily used at the Currier and Favor privileges as defined in the deeds of Bartlett in 1849, and to 80 much of the water from the Currier privilege as was conveyed to Forbes Cass by Draper Berry in 1865, and to have the same flow from the main dam. The defendant. has the right to the water for one wheel discharging into the wing-dam. His right to water for a wheel below the main dam, if it exists at all, is to obtain the water from the Favor privilege now owned by Kent Blake. By using the wheel below the main dam while Kent Blake have used the whole power belonging to the Favor privilege, the defendant has diverted water from the plaintiffs' mills." The defendant excepted to these findings and the verdict thereon, and the exception was overruled by the law court in these words: "The title of the plaintiffs, both by deed and by prescription, to the water diverted from them by the defendant, is quite too plain for discussion." It does not appear whether judgment was entered on the verdict, nor whether the defendants in this action are privy with Blake in that action, and so it cannot be held that the defendants here were estopped from raising the foregoing questions; but if not, the case is a direct authority in favor of the conclusion above reached.

The referee also found that the defendants have broken the covenant in the Greenough deed of 1833 to keep the easterly end of the main dam beyond point A of sufficient height to turn the surplus water into the lower pond. The defendants deny their liability for the breach of this covenant on two grounds: (1) because, as they say, the covenant does not run with my land; and (2) if it does, because the owners of the remainder of the privileges on the south side of the river are bound by the covenant the same as they, and so an action for its breach cannot be maintained against them alone.

From what has already been shown, it is apparent that the covenant runs with the easement and water rights conveyed by the deed, in fact, the water rights could not be enjoyed without the aid of the covenant. There is a privity of estate between the plaintiffs, as the present owners of the easement and water rights, and the grantees of the Greenough deed. The covenant relates to the maintenance of the easterly portion of the main dam, and its execution is of a continuing nature. As has been seen, Greenough intended to bind his assigns by it, as well as himself. It runs with that portion of the main dam and the water rights dependent upon the maintenance of the same, and binds the successive owners thereof to its performance. The titles of the owners are subject to the burden or incumbrance created by the covenant. Burbank v. Pillsbury 48 N.H. 475, Patten v. Patten, 68 N.H. 603. The first ground upon which the defendants contest their liability upon the covenant is untenable. It does not appear that the defendants were the sole owners of the easterly portion of the main dam and the water rights maintained by it when the breach of the covenant occurred. If they were not, the plaintiffs could not maintain an action for the breach against them alone, and there should be judgment for the defendants upon this count in the writ. It would seem from the facts reported that they were not sole owners — that the gristmill privilege and perhaps the water rights reserved by Bartlett in his deed to Favor were owned by others. If the defendants owned the main dam, and the privilege of the water held by it for use on the south side of the river was owned by them and others in common, the common owners of the privilege, in the absence of a special agreement among themselves, would probably be under obligation to make the necessary repairs upon the dam in proportion to their respective interests in the privilege. P. S, c. 142, s. 1.

Case discharged.

PARSONS, J., did not sit: the others concurred.