Jordan v. Mayo , 41 Me. 552 ( 1856 )

Appleton, J

On August 20, 1832, John Bradbury, having by various deeds acquired the title to so much of lot No. 11, range 1st, as embraced both shores and the entire water power on the falls in Piscataquis river, in Eoxcroft, and the dams across the river, and the different erections dependent thereupon, in consideration of one thousand dollars, paid by Stephen P. Brown, and an agreement on his part “ to pay one-eighth part of all the expenses of supporting and maintaining the dam across the Piscataquis river, immediately above the bridge, and one-sixth part of the expense of supporting and maintaining the dam at the said mill, now owned by me, (said Bradbury,) immediately below,” conveyed to him “ the carding and clothing building, in the town of Eoxcroft aforesaid,” and a certain tract of land upon which the same stood, Ac., Ac., “ with the privilege of drawing water from the flume now connected with said building sufficient for all the purposes of clothing and carding, and when there shall not be sufficient water for all the mills erected on said flume and privilege, the said clothing and carding privilege is in all cases to have the preference,” Ac.

This was the first conveyance made by Bradbury, after the title to the entire privilege and the land on both sides had become vested in him. The terms of this deed are first to be satisfied. The grantee therein is to be protected without limitation or restriction, in the rights acquired. What those rights may be, is to be ascertained from the language of the deed by which they are conferred. It is immaterial from what sources the title of Bradbury was acquired. Having acquired the whole, he might make such a disposition of the whole estate or any portion of the same, as he should deem advisable.

Neither is it material to examine the subsequent grants, by which Bradbury ultimately became entirely divested of his whole estate in lot No. 11. The remainder, after Brown’s deed was fully satisfied, could only be conveyed. If the deeds purport to convey more, they would be ineffectual. The rights of Brown are neither increased nor diminished by the subsequent conveyances of Bradbury.

The plaintiff, by various mesne conveyances, has acquired the title of Brown. The defendants may be regarded as representing the remaining interest of Bradbury. The rights of the parties to this controversy will be readily perceived, by regarding it as one between the original parties to the conveyance from Bradbury to Brown, and ascertaining what were their respective rights by virtue thereof.

In the construction of a deed, it is a general rule that its language should be taken most strongly against the grantor, and most beneficially to the grantee.

“ When hydraulic works are erected on both banks of a private stream,” says Walworth, Ch., in Arthur v. Case, 1 Paige’s Ch. 447, “ if there is not sufficient water to afford a full supply for all, the owner on each side is entitled to an equal share of the water.” Each riparian owner is entitled not only to half or other proportion of the water, but to the whole bulk of the stream, undivided and indivisible, or per my et per tout. Ang. on Wat. Courses, § 100 ; Vanderburg v. Vanbergen, 13 Johns. 212. Such is the law when the opposite shores have different owners; but, in the case before us, at the date of the conveyance under consideration, they had both become vested in the same individual. No conflict of right between different shore owners can arise. The question is, what the owner of both shores and the entire water privilege, intended to convey by the words of his grant.

Brown, by his conveyance, acquired certain premises and the buildings thereon, “ with the privilege of drawing water from the flume now connected with said building, sufficient for all the purposes of clothing and carding.” These words are plain. The water is to be drawn from the flume. The grant is of water “sufficient for all the purposes of clothing and carding.” It contains no limitations or restrictions. The grantor, by virtue of his ownership' of the opposite shore, could not draw off the water so that there should not be a sufficiency of water to meet the purposes of the grant. If he could rightfully so do, he might defeat his grant. But that he cannot be permitted to do.

The next words in the deed from Bradbury are these, “ and when there shall not be sufficient water for all the mills and machinery erected, or to be erected on said flume and privilege, the said clothing and carding privilege is in all cases to have the preference.” It is insisted that these restrain those of the preceding clause; that the precedence is limited to that over the machinery on the same flume, and that the grantee might draw as much water for the mills on the other side of the stream, as he might choose. The general grant is of a sufficiency for certain purposes. That sufficiency is in no way to be diminished or made an insufficiency. By the preceding clause, Brown was to have a sufficiency. By the one under consideration, his rights were made prior to all having machinery upon the same flume. These rights are not in conflict, nor are they to be impaired by the grantor.

“ Suppose a man,” remarks Shaw, C. J., in Dryden v. Jepherson, 18 Pick. 392, “owning land on both sides of a stream, (not navigable,) should grant to another the land on one side, bounded by the thread of the stream, and should, at the same time, grant a right for a mill on his own land, with a dam of sufficient height to raise the water to drive such mill. As such dam could not raise the water, without being extended across the river, and of course one half upon the grantor’s land, such a grant would, by necessary implication, carry the right to build on the grantor’s own land, and to occupy it as far as necessary to maintain the dam, so long as the dam should be kept up.” So, in the present case, the grant of water “ sufficient for all the purposes of clothing and carding” precludes the grantor from diminishing or defeating what he has conveyed.

The plaintiff is entitled, by his grant, to water “ sufficient for all the purposes of clothing and carding.” The defendant has diverted the water, and has thereby deprived the plaintiff of his legal right to a sufficiency of water.

Defendant defaulted.

Tenney, C. J., and Hathaway, Goodenow, and May, J. J., concurred.