Wetmore v. White , 1 Lock. Rev. Cas. 197 ( 1799 )

From the testimony of two of the witnesses, it appeared that the understanding of the parties at the time of the first parol agreement was, that wherever they were built, “ there the waters were to go.” That Beardsley who was examined as a witness, considered the right to the water as perpetually annexed to the mills, and. never entertained any apprehension of its being liable to be taken away.

Upon this state of facts and the proofs, the Chancellor dismissed the bill with costs. See opinion of Chancellor Lansing, 2 C. C. E. 91.

1. As to the parol agreement, he said “Upon the whole, I do not think the parol agreement is made out in proof; admitting the evidence to be competent to sustain its variant from or enlarging the written contract, and the parol contract admitted by the answer, relating to the saw mills. It is therefore unnecessary to examine the influence of the statute of frauds and perjuries on the case.”

2. As to the written contract.

“ This has no words evincive of the intent of the parties to perpetuate this joint interest, beyond the duration of the mili, which was the object of it.” “The mills were destroyed by fire; and White, senior, declares in his answer that he informed the appellant, before he rebuilt them, that the water was his, and that he had not sold it. This rebuts the deduction which might otherwise be made from his tacit acquiescence in the rebuilding of the mills. I am persuaded that the better construction is that the reciprocal interests of the parties were to be affected merely, while the principal objects of this enterprise, the mills, endured'; that those destroyed, it ceased to operate.”

From this decree Wetmore appealed; a few extracts from the opinion of Thompson, J., who delivered the only one, will sufficiently show the grounds of reversal.

Per Curiam,

delivered by Thompson, J. “ The controversy between these parties presents the following questions for examination. 1. Whether the respondent ever acquired any right to the waters of the creek for the use of the mills? 2. ' If so, whether it was a temporary or permanent right? 3. Whether, the purchase being by parol, the respondents can avail themselves of the statute of frauds to avoid it ?

He then shows that from the evidence and the acts of the parties in digging a canal and erecting the dam, “ that there was an agreement to divert the natural course of the creek, the object of which clearly was for the use of the mills. By a sale of the mills, generally, I should therefore incline to think the water would pass as an incident to them, without any special provision. Indeed it was not denied on the argument, but that the appellant had acquired a right to the use of the water, co-extensive with the duration of the first mills built.”

“ But it is not necessary to say, the right to the water passed as an incident to the mills, in the sense above mentioned : or, that the appellant acquired this right, at the time he purchased the mills. It was, I think, amply secured by a prior contract.” “ I consider the effect of this agreement as an appropriation of the water to the use of the mills; that it thereby became, in some measure, an appurtenance to them; and that, under such circumstances, a grant of the principal subject would pass the water, as an incident.”

“The next inquiry is, whether this contract vested a permanent, or only a temporary right to the use of the water ?” After reviewing the evidence as to this, he says: “ The conduct of White, in not disclosing to Wetmore, at the time of selling [his interest in] the mills, his claim of restoring the water to its original channel; his sleeping so long upon his claim; and permitting the appellant to expend his money in repairing and rebuilding the mills ; these were unconscientious, and form strong grounds for the interposition of a court of equity.”

“The appellant’s claim resting altogether upon parol contracts, it becomes necessary to examine whether any obstacle to relief is interposed by the statute of frauds 1 1 think there is not. The consideration money has been paid; possession has been taken; and valuable improvements made. I can therefore see no objection to granting the appellant such relief as will quiet him, in the permanent enjoyment of the water, to the extent it was used and enjoyed at the time he purchased from the respondent White. This is sufficiently certain and definite for a decree for a specific performance.”

Judgment of reversal, unanimously.