Flint v. Union Water Power Co. ( 1906 )

There was no error in the calling of the attention of the jury at the view, to the newly dug hole in the ground and the height of the water therein, as compared with the height of the water in the river; nor in the receipt of the civil engineer's testimony regarding the hole and the water. The height of the water in the plaintiff's land, as compared with its height in the river, was a physical fact relevant to the issue on trial, and it might be shown by direct observation and by the testimony of those who had observed it. Concord etc. Co. v. Clough, 70 N.H. 627. The fact that the civil engineer was permitted to testify to the percolating character of the soil between the hole and the river implies that the court found that he was qualified to testify upon the subject. As there is nothing in the case tending to show that there was any error of law involved in this finding, the parties are bound by it, and his testimony was competent. Jones v. Tucker, 41 N.H. 546; Dole v. Johnson, 50 N.H. 452.

Nor is the exception to the plaintiff's testimony concerning his damages tenable. Carter v. Thurston, 58 N.H. 104; Foster v. Foster, 62 N.H. 532,534.

It would seem from the manner in which the case was presented to the jury that it was not denied that the plaintiff had acquired a title by prescription to the land flowed, subject to a flowage easement appurtenant to the defendants' land at Errol on which their dam was located. The extent of this easement appears to have been the only question in dispute. The defendants asserted title to the easement by virtue of the deed of 1877 from Coe Pingree to their grantors, and also by prescription. The only exception to the charge related to the interpretation that was given therein to the Coe Pingree deed. There were conveyed by this deed the land on which the dam stood and "all rights of flowage of any lands" belonging to Coe Pingree, or either of them, upon Lake Umbagog, the Androscoggin and Magalloway rivers and their tributaries, and all right they had "to flow the land of others by any of said dams." Whether the phrase "by any of said dams" limits the right of flowing lands above the Errol dam, owned and retained by Coe Pingree, as well as all rights acquired by them to flow lands of others, might be doubtful in the absence of further statement. But this description is immediately followed by the explanation, "intending hereby to convey all right of flowage of any lands in said county of Coos, caused by any of said dams, wherever situate, . . . and however the right may have been acquired," etc. Here, the right of flowing lands other than those conveyed is specifically limited to that "caused by any of said dams." The only flowage easement involved in the action is the one pertaining to the dam at Errol, which, according to the case, must be one of "said dams" mentioned in the deed. The right of flowage conveyed in connection with this dam or the land on which it stood was not a right to flow Coe Pingree's other lands to any extent and depth that it was possible to flow them by a dam at Errol, but only a right to flow such lands to the extent that they were customarily flowed by the existing dam. The further explanatory clause is added: "to the end that the grantees may have and enjoy the same rights of flowage, and to the same extent over all said premises, as we now have the right to enjoy." This does not modify the prior explanatory clause. "The same rights of flowage" are of the flowage "caused by any of said dams"; these rights are to be enjoyed "to the same extent over all said premises as we [the grantors] now have the right to enjoy"; that is, by means of "any of said dams." The rightful state of the property at the time of the execution of the deed is weighty evidence of the intention which the parties attempted to express by its terms. Dunklee v. Railroad, 24 N.H. 489; Seavey v. Jones,43 N.H. 441; Watson v. Bartlett, 62 N.H. 447. Reading the deed in the light of this evidence, and giving its terms their ordinary meaning, it appears that there was no error in the court's instructions to the jury that the right of flowage conveyed by the Coe Pingree deed was "the right to flow as it was exercised at the time the deed was given in 1877"; and that "that is the limit of the defendants' right as founded upon the deed."

Exceptions overruled.

All concurred.