Dewey v. Williams , 40 N.H. 222 ( 1860 )

Sargent, J.

It appears by the case that in May, 1792, the town of Lancaster owned the land and water-power above Stockwell’s bridge, so called, on Israel’s river, and in pursuance of the vote of the town the lease dated May 7, 1792, was given. This lease provides that the lessee, Emmons Stockwell, shall build or cause to be built on Israel’s river, upon the premises granted, a good saw-mill, on or before the first day of December then next; also that he shall, within one year from the first day of December, then next, build or cause to be built a good gristmill, with a bolt; and also provides that said Stock-well, his heirs and assigns, shall saw logs for the one half which the logs may make in boards or plank, for the inhabitants of Lancaster, they delivering good mill-logs at said mill-yard; and it appears that said Stockwell was to hold said granted rights and privileges so long as he should keep said mills in good repair, with good attendance.

Emmons Stockwell, the next day after the date of his lease, conveyed the same premises, rights and privileges, to Titus O. Brown, who, it would seem, built the saw-mill and grist-mill soon after, and we infer from the case that they have both been continued upon the same site ever since. The sawrmill and grist-mill passed by several conveyances to John Mclntire, who, by quitclaim deed of April 15, 1820, conveyed the saw-mill and land on which it stood to Moses T. Hunt. This deed conveys “ all the water-privilege, except a sufficient quantity for two runs of stones in said grist-mill, and except the right of maintaining tbe necessary flume for said grist-mill.” Tbe plaintiff claims under said Mclntire, and owns tbe grist-mill and tbe land upon which it stands, and so much of tbe water-privilege as was reserved by said Mclntire in bis deed to said Hunt, which was a sufficient quantity for two runs of stones in said grist-mill.

Tbe defendant bolds or claims to bold under some conveyance from said Hunt, who bought tbe saw-mill and tbe water-power, subject to tbe prior right of tbe plaintiff’s grantor, Mclntire, to draw first a sufficient quantity of water for two runs of stones in said grist-mill. It is contended that this apportionment, or tbe granting of a prior right to tbe grist-mill, is void ; that no preference could thus be given by one bolding under title from tbe town. But there is no evidence in the case tending to show, nor is there any complaint made, that tbe conditions and stipulations contained in tbe lease from tbe town, to be performed by tbe lessee and bis assigns, have not all been performed. If tbe mills were both built within tbe time specified, and if tbe logs have been sawed at tbe halves for tbe inhabitants of Lancaster, when furnished in tbe mill-yard, and if said mills have been kept in good repair, with good attendance, then tbe grantee bad a perfect right to tbe land and water-privilege granted, and could apportion it out as be pleased, among as many different persons and for as many different purposes and uses as be chose, and give to one grantee as much priority or preference in tbe manner of using tbe water, or in tbe amount to be used, as be saw fit, and no oue, not even tbe town, could complain; and if each grantee bad tbe full use and enjoyment of all tbe rights and privileges be purchased and paid for, be could not complain that some other one purchased and paid for and enjoyed a greater or better privilege than be ; and the power and right of the lessee from the town, thus to discriminate in his grants, cannot be doubted, so long as he is able to perform and does actually perform all his engagements with and duties toward the town.

But it is claimed that this apportionment of the waterpower, and the preference thus given to the grist-mill, may prevent the saw-mill from doing the work required of it by the grant, and therefore that this apportionment is void. But suppose that this might be so, or suppose that such a result had already followed, and that, in consequence of the water having been so used as to give a sufficient quantity for two runs of stones at the grist-mill, the saw-mill had been unable to do the required work, and suppose that the grant was thereby forfeited, the town only could take advantage of such forfeiture. This defendant, who stands in the place of one who agreed to this apportionment, and took his rights subject to such prior grant, cannot object to it.

A forfeiture of a grant cannot be inquired into collaterally. Com. v. Union Ins. Co., 5 Mass. 232; Chester Glass Co. v. Dewey, 16 Mass. 102; Bear Camp River Co. v. Woodman, 2 Gr. 404; Rex v. Amory, 2 T. R. 515; Rex v. Pasmore, 3 T. R. 244; State v. Carr, 5 N. H. 367; Pierce v. Somersworth, 10 N. H. 369; State v. Fourth N. H. Turnpike, 15 N. H. 162; Sewall’s Falls Bridge v. Fisk, 23 N. H. 171.

The question also arises whether the reservation in Mc-Intire’s deed to Hunt, under which the plaintiff claims, limits the plaintiff in the use of the water and confines that use to a grist-mill, or to the running of two runs of stones in such grist mill, or only in the amount or quantity of water he might use. ¡ If the language used rendered it doubtful as to the meaning of the terms of the grant in this particular — whether the intent was to confine the use of the water to a grist-mill, and that alone, or whether it only referred to such mill, to indicate and measure tlie quantity of water to be used, and the amount of water-power to be conveyed — in such case the court would lean to the latter construction ; because in general it is more beneficial to the grantee to allow a latitude of choice in the use he shall make of it, without being more onerous to the grantor, and therefore more consistent with the general rule of construction as applied to grants; and also because such construction is more favorable to the general interests of the community by encouraging enterprise and promoting public improvements it is better adapted to the growing and changing wants' and the ever-varying pursuits of an active community. Such a construction is best suited to enable the grantee to adapt his works to the progress of improvement in the mechanic arts. A water-power which at one time and for a particular purpose is very valuable, might become worthless under a change of circumstances and a change of business, if it must always be confined to the same use. Ashley v. Pease, 18 Pick. 268; Tourtellot v. Phelps, 4 Gray 374; Blanchard v. Baker, 8 Gr. 253; Johnson v. Rand, 6 N. H. 22; Whittier v. Cocheco Manf. Co., 9 N. H. 454. But /the language here would seem to indicate that the intention merely was to measure the quantity of water to be used. The measure of the plaintiff’s right to water is the quantity used to carry two runs of stones in said gristmill on the 15th day of April, 1820, when the apportionment was made between Mclntire and Hunt. The plaintiff may appropriate that amount to any use he pleas-as against this defendant; * or he may use in his mill as many runs of stones more than two, as he will, provided he can do so by introducing improved water-wheels and machinery, with the quantity of water thus granted him, without the right to object in any quarter.

There must, therefore, be judgment for the plaintiff, leaving his damages to be assessed at the trial term of this court; unless the case should he discharged.