Davis v. Muncey , 38 Me. 90 ( 1854 )

Cutting, J.

— As nearly as it can be ascertained from the evidence reported, and the three deeds only exhibited, it appears that David Graffan originally owned the whole water power, and having built the dam and gristmill, subsequently, on Dec. 21, 1845, conveyed to the defendant, “ the land whereon the east half of the shop- stands, situated-below his gristmill, with one-half of the flume to said shop,, with the privilege of drawing water from the mill-dam to carry small circular saws, &c., “ when the water is not needed' for the gristmill, Spc.”

That Davis N. Graffan, claiming under David Graffan, on June 23, 1849, conveyed to the defendant one undivided-fourth part of the shop and land on which it stands, &c., “ reserving the preference of the water for the gristmill.”

That the plaintiffs by deed or otherwise were in possession of, and jointly occupied the gristmill, claiming either directly or indirectly under David Graffan.

That the defendant’s shop is situated just below the gristmill; his wheel is propelled by water from a flume,, below^ but connected with the gristmill flume; that between the latter flume and the main stream is a ledge, over which the water flowed into the gristmill flume in such way, that when the gristmill was in operation, if defendant’s gate were raised, the speed of the gristmill would be much retarded, notwithstanding the water would continue to run over the top of the dam; and it was for the defendant’s use of the water under such circumstances that this action was brought.

That the gristmill, on Dec. 27, 1845, the date of the deed from David Graffan to the defendant, was operated by means of a tub wheel; that afterwards the Kendall wheel was substituted, and there was evidence tending to show that the former drew less water than the latter, and the contrary. And that in 1849 the dam was carried away and subsequently rebuilt, and the expenses, by a reference, was apportioned among the several interests, and seven per cent, was awarded as the defendant’s share.

The foregoing are the principal facts that elicited the rulings of which the plaintiffs complain.

By the deeds from David and Davis N. Graffan, the defendant acquired the privilege of drawing water from the mill-dam to carry small circular saws, &c., when it was not needed for the gristmill; and it is not pretended that he used the water for any other purpose than that mentioned in the deeds, but it is alleged that he used it when needed for the gristmill. If the defendant was restricted in the use of the water, so also were the • plaintiffs’ grantors, who could not afterwards make use of that which they had previously conveyed, and they could not use, to the detriment of their grantee, more power than was necessary to propel the tub wheel in use at the time of the grant, although they might use the same quantity in operating the gristmill by any other wheel or wheels; otherwise, the gristmill might exhaust the whole water in the flume and leave none for the shop. And it was incumbent on the plaintiffs so to have constructed their wheel and its curbs, that no more water should pass through or by it, than when the defendant obtained his grant. If the plaintiffs in either mode diminished the water in the flume, to the amount conveyed to the defendant, they have in this suit no reason to complain, and such in substance was the ruling of the Judge in that particular.

It does not appear that the sawmill flume, controlled by Davis, one of the plaintiffs, had any connection with that of the gristmill, or that it was not entirely distinct and separate from it, and from the plan exhibited to us, it is so situaated. Such being the fact, while the water was continually flowing over their common dam, it is difficult to perceive how any leakage from Davis’s flume could diminish the quantity of water in that used in common by these parties. But the case finds that “ it appeared that the sawmill flume, which was under the control of Davis, one of the plaintiffs, leaked some; upon this fact and the foregoing evidence, the Court instructed the jury that if the leakage from the sawmill was occasioned by neglect and want of ordinary care on part of plaintiffs, that plaintiffs could not throw on defendant losses occasioned by their neglect, or that of cither of them, provided he used and wasted enough in the whole to equal the amount required for the full enjoyment of the mill in 1845.”

According to this instruction the plaintiffs are made accountable for all the water which leaked through the Davis mill, when there is no evidence that if his flume had been perfectly tight, it ever would have found its way into the gristmill flume, but rather, like a portion of the common mass, would have been obstructed by the ledge; consequently the plaintiffs were no more liable for such leakage, than they were for the water that passed off over the dam.

The exceptions are sustained, verdict set aside and a new trial granted.

Shepley, C. J., and Tenney and Rice, J. J., concurred.