William Ashley versus Harlow Pease, 18 Pick. 268

Shaw C. J. delivered the opinion of the Court. The decision of the present case must depend exclusively upon the construction of the contract entered into by the plaintiff, with Allen Pease, the defendant’s father and grantor, on the 30th of January, 1809.

It is conceded, that up to that time, Ashley, the plaintiff, was the exclusive owner of the land on both sides of the stream, together with the whole of the water privilege, that he retains all the rights incident to such ownership to the present time, except such as he parted with by this contract, and that Harlow Pease, the defendant, has new all the rights which were conveyed to his father by that contract.

Nor will the doctrine relative to the legal rights of riparian proprietors, go far to aid the construction of the contract, because admitting, that by the terms of the grant of land, the grantee became such a proprietor, that is, an owner of land bounding on the stream, (which is denied,) such general tight is limited, restrained, and regulated by the terms of the contract. Presumptions are resorted to, as a means of ascertaining the intentions of parties, whenever they have not expressed them with sufficient clearness. But conventio legem vincit.

Genera ownership embraces the right to use the whole of the water power, to every extent and for every purpose to which it can be legally used. If having thus the unlimited jus disponendi, the owner chooses to grant, and the grantee chooses to accept a grant, either of the land without the water privilege, or this without the land, or a qualified and limited right to the water power, there is no legal impediment to such a grant, nor will it be controlled by the general presumption in relation to the rights of riparian proprietors.

That the right intended by the parlies to be so granted and accepted, was limited and qualified, we think is manifest from the general tenor of the contract, and is especially confirmed by one of the covenants, in which the grantee stipulated, that neither “he, the said Allen, nor his successors or assigns, shall or will ever use, occupy, or work the said fulling mill, nor any other mill standing m the same place, so as in any manner to interfere with or obstruct the going of said saw mill of said William, or any mill which may hereafter stand in the same place, except by drawing water from said fioom as aforesaid.” The words “ obstruct” and “interfere with,” if they stood alone, might be understood to mean the interposition of some direct impediment.

But the exception explains them, and shows what was intended. How would drawing water from the fioom obstruct or interfere with the going of the plaintiff’s mill ? Surely in no other way, than by diminishing the water power intended to carry it. Thus explained, the stipulation is, that the grantee will not obstruct the plaintiff’s mills, by using and diminishing the water power, except by drawing water from the fioom, as aforesaid, that is, as far as the right is granted by the foregoing contract.

The effect is, to limit the right of using the water to that granted ; and then the question recurs, what is the nature and extent of the right thus conferred. One other observation it may be proper to make, before proceeding to the direct question, on the construction of the contract. Here two instruments of the same date were executed by the parties, differing a little in their terms.

These were manifestly executed at one and the same time, and relate to the same subject matter, and they must therefore be taken and construed together ; every stipulation, covenant, and clause contained in either may be resorted to, to ascertain the meaning of the parties. The effect will be, that general words in one, will be limited and qualified by more special stipulations in the other. If a general right is granted in one, and this is restrained by the provisions in the other, the qualified right only will be conferred.

When the provisions are different but not repugnant, according to the general rule, the words of grant, covenant, or acknowledgment, would be taken most strongly againrt the party using them, and the largest right, which the construction of either instrument would admit, would be taken to be conferred on the grantee, convenantee, or party benefited. To illustrate this by an instance in these two instruments. One states the consideration to be $400, the other $200. These, though various, are not repugnant.

Supposing the question were upon the actual consideration paid, and to be proved by these deeds, it would be taken most strongly against the party acknowledging the receipt of the money, and prove that the larger sum, $ 400, was paid. It may be proper to advert to some rules of construction, applicable to the grants of water powers.

In general, where a mill-seat is granted, that is, land on a stream on which mills are actually situated, or where it appears by the grant, that the object is to erect mills thereon, the soil is the principal subject of the grant; the right to use it for any and all mill purposes at the pleasure of the owner, and to change those uses at pleasure, follows as incident to the ownership ; and words of description of the water power, such as the right to use the stream, for the saw-mills and grist mills, &c., situated, &c., are not to be considered as restrictive of the more general right, incident to the ownership.

Again, where the grant is of a water power, in terms, described, and where the privilege itself is the principal subject, if it is left in doubt, whether it is a grant of a sufficient quantity of water to carry a particular kind of mill, making reference to such mill to indicate and measure the quantity of water power intended to be conveyed, or whether it is a grant of the use of the water to carry such particular kind of mill only, the former construction will be more favored, because in general it is most beneficial to the grantee, by allowing a latitude of choice in the use he shall make of it, without being more onerous to the grantor, and therefore most consistent with the general rule applicable to the construction of grants, and because such construction is most 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. Still, for the reasons already given, it is competent for the owner of the whole of a mill privilege to grant a part, and any part which he pleases, and for the grantee to accept such part, and of course it is competent to grant the right to use water for the purpose of carrying a particular species of mill and no other.

And the question in this case is, whether it was a grant of water enough to carry a fulling mill, to be applied by the grantee to carry a fulling mill, or an oil-mill, or other works requiring equal power at his pleasure, or whether it was a grant of a right to draw water to carry the fulling mill only, and restricted to that use.

The Court are of opinion, that the latter is the true construction of this grant, and that it was intended, not to measure and limit the quantity of water power, but to restrict the use of the water to the actual purpose of carrying a fulling mill, either the one then standing or some other fulling mill to be erected at the same place. This seems to us to be the natural and obvious import of the words of the grant used in the contract, and this construction is confirmed by all the other provisions of the contract and by all the attending circumstances.

Ashley covenants for himself, and his heirs, with Pease, his assigns, &c., that they will, at all times, when there is a suffi ciency of water to supply all the mills now standing, or which may be standing in their places, suffer and permit Pease and his assigns to draw so much water as may be necessary to carry and supply the fulling mill of Pease which now stands, or which may hereafter stand on the same spot, but when there is not such sufficiency of water, Pease and his assigns are to draw from the floom, for the use of the fulling mill or mills, twelve hours successively in the twenty-four hours and no more.

The clause is nearly the same in the other instrument, except that the words “ or mills” are not inserted, hut the language is that Allen and his assigns are to draw water from the floom, for the uses of his or their fulling mill as aforesaid, twelve hours, &c. This was a perpetual grant, not therefore limited to the idemical mill then standing, which must decay, but any and all mills subsequently to be erected for the same purpose, on the same spot.

Hence the use of the plural, “ mills.” Again, from the proportions, in which the parties were to contribute to the maintenance of the dam, it is obvious, that the amount of water power granted to Pease, compared to that of the whole, was small, viz., as one to fifteen.

But the right, when the water was insufficient to draw for twelve hours in twenty-four, which might be the twelve working hours, a sufficient quantity of water to carry any fulling mill of any size, and that quantity adapted and applied to other uses, as to a manufactory, would seem to constitute a much larger quantity of the power than was contemplated.

At the time that grant was made, it may have been contemplated, that a fulling mill would probably be employed only to full the home-manufactured cloth for customers in the vicinity, and would, therefore, be carried on upon a small scale, for a part of the year only, and that part when there was a superabundant supply of water. Still if the grantee chose, using it only as a fulling mill, to extend his work, and to run it the whole year, he had a right so to do. There was no restriction of that use.

Of this the grantor took his chance, which he might consider that he run no great risk in doing, if confined to that use. This leads to another remark, which is, that it could hardly be intended to measure the quantity of water power granted, because it was, of itself, so uncertain a one. The use would be governed by the amount of custom, the number of weeks that such custom would require the use of the mill in each year, and the season of the year.

If it had been intended to operate as a grant of water power sufficient to carry a fulling mill of any size and of any number of fulling stocks, for twelve hours of the day through the year, it would probably have been expressed in somewhat different terms. And yet it seems difficult to limit it to any amount short of this, consistently with the claims of the defendant.

On the best consideration we have been able to give to this grant, the Court are of opinion, that it was the grant of a right to use the water for driving the fulling mill, and for no other purpose, and that the use of it to carry a carding machine, was unauthorized, and has subjected the defendant to an action.