Oregon Iron Co. v. Trullinger ( 1868 )

Boise, J.

Appellant contends that by the terms of this conveyance, it has a right at all times to enjoy the natural flow of the water in said creek, unobstructed by the defendant’s dam; that is to say, that the words, “ which naturally flows below said saw-mill in said stream, unobstructed by said parties of the first part,” &c., mean as the same was in a state of nature. If this view should be entertained as correct, then the defendant and Durham sold to Green all their control over the water in said lake and creek, and in effect abandoned their saw-mill and dam, and water power appertaining thereto. If this were the understanding, why the words in the conveyance, limiting Green to the right to build his dam at a point below said saw-mill, and also limiting him to flow water by his dam, only to the foot of his overshot wheel of his saw-mill ? These reservations and limitations are inconsistent with the theory, that it was the intention of the parties to the conveyance to convey away to Green the control of the water at and above said saw-mill. We think the court below gave the right construction to the conveyance, and that the words, “ which naturally flows below said mill in said stream,” mean the water which flowed from said mill when the same was in operation. Any other construction would necessarily defeat the objects of the conveyance: for the evidence shows that without the aid of the defendant’s dam to husband the waters of the wet season, the water power of plaintiff would be comparatively useless, not being sufficient to run the machinery during the summer.

Judgment is affirmed.