Klaer v. Ridgway

Mr. Justice Paxson

delivered the opinion of the court,

The assignments of error from one to eight inclusive, raise substantially the same question and may be considered together. In each of them the complaint is that the court below erred in its construction of the deeds from John C. Mott to the plaintiff.

At the time of the execution and delivery of the deed of September 22d 1866, Mott was the owner of two mills, a grist-mill and a saw-mill. Prior to that date he had leased to the plaintiff a piece of ground for a spoke-factory. All of these mills were supplied Avith water from the Sawkill creek. On the day above mentioned Mott conveyed to the plaintiff the land previously leased to him for a spoke-factory, with the right “ of using the Avater for the uses and purposes of the property hereby conveyed, equal to six horse-power, Avith the privilege to take the same from the race leading to the grist-mill of said Mott where it is now taken. And in case said race leading to the said grist-mill shall be abandoned, the said party of the second part shall have the right and privilege to take and use said water from the dug-race on the Dingman side of the Sawkill creek, at such point most convenient to the said party of the second part. Provided, hoAvever, that the grant of water as above described shall in no Avay interfere with the grist-mill of the party of the first part; but it is expressly understood that the said gristmill is in all cases to be first supplied, and in case of Ioav water the said grist-mill shall be entitled to the exclusive use of the AYater if necessary to drive said mill; and provided further, that no use Avhatever shall be made of said water by said party of the second part, his heirs, executors or administrators, for any purpose which shall in any manner interfere with the grist-mill or the sawmill of the said parties of the first part. And it is further understood and agreed, that the said John C. Mott, his heirs, executors and administrators, Avill not erect any building on the adjoining premises or permit the same to be erected, or engage himself in the business of making spokes and hubs, or sell or permit any other person or persons to do so.” Each of the above provisoes has a distinct object. The first is to limit the grant of water so that it shall in no Avay interfere with the supply for the grist-mill. The grist-mill is in all cases “to be first supplied,” and in case of Ioav Avater “shall be entitled to the exclusive use of the water.” The language of this proviso is explicit. It refers to the quantity of water granted, and subordinates the spoke-mill to the grist-mill. The latter must first run, then if there was water enough left, the plaintiff could run his spoke-mill. Having secured this primary object and protected his grist-mill from loss of water necessary to its operation the grantor proceeds to protect both the grist and sawmill from competition by restricting the purpose to which the water is to be applied. Upon this point the language of the second proviso is equally clear and explicit. It says: “No use Ayhatever, shall be made of said Avater by said party of the second part, his heirs, executors or administrators, for any purpose which shall in any manner interfere with the grist-mill or the saw-mill of the said parties of the first part.” This restriction has no reference to the quantity of water to he used by the spoke-mill; it merely limits the purpose to which the water shall be applied. It shall not be used for any purpose which shall in any manner interfere with the grist-mill and saw-mill. That is to say, the plaintiff should not erect a rival grist or saw-mill and use the water to run it. This is the obvious meaning of the second proviso. It does not, and was not intended to protect the saw-mill against the use of the water for the spokc-'mill, but only against its use for a purpose detrimental to the saw-mill.

So much is clear. On the 1st of April 1868 Mott, being still the owner of the grist-mill and saw-mill, conveyed the grist-mill to the plaintiff by a deed containing the following clause : “ Also the right and privilege to the use of the water from the race and dam belonging to said Mott, sufficient to run a grist-mill upon the premises hereby conveyed, of the capacity and power as the mill now constructed; or the said Klaer may use the water to the same extent as now used by said grist-mill for any other purpose of propelling or running machinery (except for a saw-mill), in lieu, and place of the water now used by said grist-mill; but in no case is said Klaer, his heirs or assigns, to have the right to use any more water than is now necessary for said grist-mill.” Thus the plaintiff became the owner of both the spoke-mill and the grist-mill; Mott continuing to be the owner of the saw-mill. After the death of Mott the defendants purchased the saw-mill from his executors, and they now have whatever water-right was left in Mott after the conveyances above mentioned, and no more. What was that right ? He had first conveyed to plaintiff the right to the extent of six-horse power of the water left after supplying the grist-mill. He then conveyed to him the grist-mill, with the right to use sufficient water to run it as of its then present power, or to “ use the water to the same extent as used by said grist-mill for any other purpose of propelling or running machinery (except for a saw-mill) in lieu and place of the water now used by said grist-mill.” It is a familiar rule that a deed or grant must be construed most strongly against the grantor. This applies with especial force to a reservation or restriction in a deed whereby there is a withholding of something from the grant. Here the grantor limits the quantity of water to the amount then required for the grist-mill, 'but restricts the purpose to which it shall be applied only to the exclusion of a sawmill. He excludes such use to protect the saw-mill which he still owned, hut,for any other purpose the plaintiff was at liberty to use the water. It is clear that under the two deeds from- Mott to the plaintiff, the water as between the parties must be applied, first, to the grist-mill; second, to the spoke-mill; and third, to the saw-mill, owned by Mott. The latter would have no right to use the water for the saw-mill until the grist and spoke-mills had been supplied. It is equally plain that under the last deed to plaintiff he would have the right to shut down the grist-mill and run the spoke-mill as against Mott, and his grantees of the saw-mill.

This covers all that is really important in the case. The remaining assignments refer to the admission of evidence, and may be briefly disposed of. It was error to admit the evidence contained in bill of exceptions No. 2, (9th specification). It was irrelevant, and may have misled the jury. It is not material whether the plaintiff objected to the building of the dam. ‘ The defendants had a right to construct a dam upon their own premises. It was only its use that could injure the plaintiff, and it is of its use only that he complains. Equally objectionable was the evidence referred to in the tenth assignment. It proved merely an unaccepted proposition, and had no bearing upon the question whether the defendants had used water which of right belonged to plaintiff’s mill.

All of the assignments of error are sustained. The judgment is reversed, and a venire facias de novo awarded.