Amoskeag Manufacturing Co. v. Shirley , 70 N.H. 577 ( 1900 )

The questions arising in this case depend upon the construction of the deed of 1887. The defendants claim that it is implied that the method of securing the three-foot flashboards is limited to the manner provided for securing the two-foot flashboards set forth in the deed of 1875, — that is, by pins four feet apart.

The deed grants a right to place and maintain flashboards upon the dam, nine months of the year, one foot higher than was granted in 1875. No restrictions as to the way of securing them are specified, nor is any reference made to the restrictions in the earlier deed. Although the right to place and maintain the boards was all that was expressly granted, whatever is reasonably necessary for the plaintiffs' enjoyment of the right passes to them by operation of law. Cochecho Mfg. Co. v. Whittier,10 N.H. 305, 313. They may secure them in any way that will cause them to withstand the pressure of the water, provided the way adopted is reasonable. It appears that the way by which the boards are now secured, and have been since 1887, is the only reasonable way of maintaining of that width.

The claim that supporting the flashboards by pins less than four feet apart violates the condition of the deed of 1875 is hot well founded. For some two months prior to the execution of the deed of 1887, the plaintiffs supported the flashboards by pins the same distance apart as now, and it is highly probable that the defendants were aware of this fact. There can be but little doubt that both the plaintiffs and defendants understood that the pins must be set thus near together to be reasonably effective for the purpose designed. It is not reasonable to suppose that the plaintiffs were paying and the defendants receiving $1,000 for a right which was useless. The evident intention of the parties was to modify the conditions of the former deed to the extent required to render the three-foot flashboards effective. To carry out this intention, the defendants conveyed, with full covenants of warranty, the right to place and maintain the three-foot flashboards, absolutely and without condition. As was said in Amoskeag Mfg. Co. v. Shirley, 69 N.H. 269, 270, respecting these conveyances: "There was no exchange of rights between the parties by the second deed. Its obvious purpose was to give the plaintiffs an additional right, and no other effect can be given to it consistent with elementary rules of construction."

At the September term, 1898, the defendants were forever enjoined from removing any of the flashboards then upon the dam, or which might be placed upon it, in accordance with the conditions and requirements of the deed of 1887. Amoskeag Mfg. Co. v. Shirley, 69 N.H. 638. It is understood that this injunction is still in force. If it has been violated or shall be violated, the defendants may be called upon to answer an attachment for contempt. The circumstances of the case do not call for a more extended restraining order at this time.

Case discharged.

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