Jacob & A. D. Rood v. Joseph Johnson, 26 Vt. 64

The opinion of the court was delivered by Eed field, Ch. J. I. In regard to the extent of the grant, in this ease, from Stevens to defendant, we have not been able to see that there is really any very great uncertainty. The description of th¿ thing intended to be conveyed, so far as the water right is concerned, is somewhat inartificially drawn. And it is perhaps fairly susceptible of receiving such a construction as to give it somewhat the air of indefiniteness.

This is often the case, when we attempt to apply the strict rules of construction to the precise words used, not sufficiently keeping in mind, at the time, the situation of the parties, and the state of the subject matter. Taking all the words of description here used into the account, it is clear something was intended to be excepted from the grant, or in other words, reserved to the grantor, which is technically an exception, not a reservation.

And this I think is clearly expressed by the words following the word “ except” in the deed: “ except in times of low water, when « it is wanted for carding and cloth-dressing, and for the grist-mill.” When what is wanted? of course the water. Then all the water is reserved, or excepted, which is wanted, in low water, to operate successfully the carding and cloth-dressing business, and the grist-mill. But it may be inquired, when is it low water ? Of course it is low water when the defendant’s saw-mill does not leave what is excepted from the grant, i. e., what is wanted for the grantors mills already erected.

Here is no repugnancy. The land is conveyed, and the grantor might, if he chose, reserve the use of all the water to himself, or he might convey the use of all, or a portion of the use of the water in the stream, as a mere incorporeal hereditament, and retain the fee of the land in himself, notwithstanding the maxim that one cannot convey the water separate from the land.

But here he chose to convey the land, and the use of the water, he desired, apparently, to restrict, so as not to render his own erections useless, and he adopts a form of expression, as if the conveyance of half the land under the water would not give the use of any water. That might be his view of the law, or it might not. To save all doubt, he says “ with the privilege of drawing water to carry said mill.” This alone might fairly be construed to carry more than half the water, when needful to carry the sawmill.

But this is restricted by the exception, which obviously was intended to be a reservation out of the whole grant. These words are obviously not the words of a professional scrivener, but of an inexperienced draughtsman, and any attempt to apply to words of this character, the same rules of construction, which strictly professional language might be aided by, will often fail of reaching the cardinal purpose of all rules of construction, the intention of the parties. This case, in principle, and, indeed, in its facts, is strikingly similar to the case of Gray, admr. v. Clark, 11 Vt. 583.

And if the court should go here again, into an extended examination of the cases upon the subject of exceptions and reservations; which are very numerous, it could answer no good purpose. I have said all, in the case last cited, which I desire to say here. None of the cases read at the bar are as much like the present as the one last named, and no case is authority for another upon a subject of this kind, unless the similarity approaches very nearly to identity. Mr. Angel’s

chapter on reservations of water rights in grants of land, shows very fully the soundness of the grounds upon which we here go, and the cases on the subject will be found there collected, and very fairly and fully collated. II. 'Upon the principles of the decisions of this court in Rogers v. Bancroft, 20 Vt. 250, and Adams v. Warner, 23 Vt. 395, it is obvious this reservation of water-right must be regarded as a certain measure of water, rather than water for a particular use, of course, then, the use of this water might be changed, or assigned, or both. The case of Pringle v.

Taylor 2 Taunton 150, does not apply to a case of this kind, but only where the reservation is for a particular use, and then only when the use is confined to a particular gauge, which is wantonly destroyed by the owner of the right, thus bringing the case within the principle of, loss, by a voluntary confusion of goods, with the fraudulent purpose of gaining an unjust advantage, when it is thereby rendered impracticable to restore the parties to their former state and position. Pratt v. Bryant, 20 Vt. 333. III. The suffering the sand-bar to accumulate is not such

an act as would deprive the plaintiffs of their remedy against defendant. It was one of those natural results, which ordinarily neither party has any right to interfere with, by direct removal. The most that could ordinarily be done in regard to alluvion is to use means to guard against its consequences. After it occurs, the rights of the riparian proprietors are fixed by it, and it is not competent for one, who thereby suffers loss, to restore the'stream to its former state. 2 Black. Com. 262. Angel on Watercourses, § 55, 56, and cases cited.

But if a stream suddenly leaves its bed, which constitutes what the cases call reliction or avulsion, it may be restored. Id. § 57 — 60, and cases cited. Woodbury v. Short, 17 Vt. 387. Butin a case like this, very probably either party might be justified in removing the bar, which is a common injury. But as the plaintiffs’ right was the dominant one, we do not see how the defendant can complain of the plaintiffs for insisting upon their right, notwithstanding any natural changes in the bed of the stream, so long as the plaintiffs interposed no hindrance in the way of defendant’s removal of the obstruction.

He seems to be the party primarily interested in the removal. IY. In regard to giving the defendant notice of plaintiffs requiring the water, when there was a deficiency, there is no doubt some difficulty, if there really was any such necessity in order to have the defendant made aware of it. But that certainly does not appear by the report, and we ought not to raise any presumptions, either against the judgment below, or the decision of the referees, except where the facts, upon which such presumptions stand, are found.

And when the water was drawn out so low, that plaintiffs could not run their machinery, is a matter open to the observation; of every one skilled in such matters. The defendant would scarcely need to be told of that.

And as the defendant, in common with all others, was bound to know the extent of his right, and that it was subservient to that of the plaintiffs, when the water was so low that the plaintiffs could not run their machinery, he would be bound to take notice of the state of the water, and not to reduce it below that point, or if he did, would be liable to all damages, which plaintiffs sustained by being delayed for it to accumulate, so they could run their mills.

It will be borne in mind that if plaintiffs’ right is superior, and' defendant reduces the water so low as to interfere with that right, giving notice when plaintiffs need to use it, does not relieve the plaintiffs. They are not obliged to wait for the water to accumulate, even one minute; they are entitled to have it always at the proper point when they need it. We do not apprehend, that practically, any difficulty arose on this point. If the parties had understood their rights alike, the matter of notice would have caused no embarrassment we conjecture from the case. V. No question is made by Mr.

Edmunds, in the argument, in regard, to the competency of Stevens, as a witness, although that is one exception filed. And very obviously, the counsel judged correctly in not urging it For Stevens deeded to the plaintiffs, in express terms, all the right he had not already conveyed to Ferguson and the defendant There could not therefore any liability come upon him to the plaintiffs, on the ground of any recovery, more or less, by the defendant. And Stevens’ deed to Ferguson is a mere quit-claim, and of course he took subject to the right of defendant, whose deed was upon the registry of lands.

And how Ferguson, whose right was inferior to defendant’s, and to plaintiffs’, could have any legal interest in a controversy between themv I do not readily perceive. We think no such interest, in the event of this suit, did exist in Ferguson, as to disqualify him as a witness. YI. The $2 damages given in the first suit is given for using the water, by defendant’s saw-mill, so that plaintiffs could not run their carding machines, and we do not learn from the report, but this use was in the same measure it was, at the time of Stevens’ deed to defendant.

But the second case, it is claimed does raise the question, whether the plaintiffs have not taken more than they were entitled to, by the reservation in Stevens’ deed. But if that were shown, it would not defeat the plaintiffs’ right to recover, when th® defendants reduced the water so low, as to give them less than they were entitled to, and this is the ground upon which damages are given, in both reports, as we understand. And we do not see why the grist-mill being moved farther down the stream, should deprive the plaintiffs of their right to take, as much water, as before. Judgment affirmed in both cases.

Note. — In Sumner v. Foster, 1 Pick. R. 32, it is held expressly, that the mill owner, having the subordinate right, must take notice when he is infringing upon the right of his superior, and is not entitled to notice, and the case of Hatch v. White, 22 Pick. 518 has not been regarded, as shaking it, but as decided on its peculiar facts.