The opinion of the court was delivered by
Redfield, J.
In regard to the question, whether a grant of water privilege is ordinarily to be restricted to the particular use named in the grant, or the us'e is to be regarded as a measure of quantity, the rule laid down by Hall, J., in Rogers v. Bancroft, 20 Vt. 257, is no doubt sustained by the best considered cases in this country. And upon a subject of this character, from our altered situation, the American cases are, as a general thing, more applicable and more reliable, as authority, than the English cases. In the case named the learned judge says, “ There is undoubtedly an inclination in courts to construe grants of water liberally, so as to impose no unnecessary restriction upon its use : and when the words used will admit of one construction, which would limit the use to a particular purpose, and another, which would allow the use specified to be merely a measure of the quantity to be used, the latter construction is adopted.” The reasons assigned by the learned judge, and which are relied upon in most of the cases upon this subject, in this country especially, namely, that such a construction is more favorable to the grantee and conduces most to “progressive improvement in water power,” we may hereafter notice more fully.
The same general remark, in substance, is made by Shaw, Ch. J., in Ashley v. Pease, 18 Pick. 275, and the same general view is there somewhat more amplified, founded substantially upon the same ground. The grant in that case, being for a fulling mill, was held to be restricted to the specific use. And there is, perhaps, more reason to hold grants of water privilege, for driving machinery in [411]*411business which only occupies particular seasons of the year, and those, often, when there is ordinarily an excess of water, limited to that particular use, than in most other cases. And there is in this state almost no kind of business, coming so emphatically under this exception, as a custom fulling and cloth dressing business, or that was so at the date of the deeds, which came under consideration in the present case, — that business being at present but little known.
But even in that business, we should not be inclined to favor such a construction, unless the terms of the deed seemed very clearly to indicate such an intention, and the use had been uniformly consistent with such a construction. Many of the cases cited in argument, in favor of restricting the use, are of this character. Strong v. Benedict, 5 Conn. 210. The case of Johnson v. Rand, 6 N. H. 22, does not seem to make much in the case either way. The change there was only in the mode of applying the water power to the same use, and the wonder is, that any one should seriously have questioned the right to make such an alteration. The contrary rule would absolutely forbid all improvements in the use of water power. Bigelow v. Battles, 15 Mass. 313, is the case of the reservation of water sufficient to carry five thousand spindles in a cotton factory, to be thereafter erected; and the court held it to be a reservation of a quantity of water, which the party might apply to any use he thought proper. Crowell v. Selden, 3 Comst. 253, was the case of a reservation of water power sufficient to carry a grist mill with three runs of stones, — almost identical with the present. The court held, it did not restrict the use to that particular kind of machinery, but was only a measure of quantity.
We think, there can be no doubt as to the general rule of construction of grants of this kind; and that reservations are fully as much entitled to be considered a measure of quantity, as grants, for the reason that the general owner, in parcelling out a water power, would, as a general thing, be more likely to restrict others, than himself, having the power to do so.
We perceive, that one of the reasons, often urged in favor of such a construction of a grant, namely, that it is more favorable to the grantee, will not apply to the case of a reservation, but would, so far as it is entitled to any consideration, lead to a contrary conclusion. But that rule of construction is not properly applicable to [412]*412any case, but one of strict equivocation, where the words used will bear either one of two or more interpretations equally well. In such a case, if there were no other legitimate mode of determining the equipoise, this rule might well enough decide the case. In all other cases, where this rule of construction is dragged in by way of argument, — and that is almost always, where it happens to fall on the side, which we desire to support, — it is used as a mere make weight, and is rather an argument, than a reason.
But the prevailing reason for this construction is one of policy. It is all important to the interests of business, and to the proprietors of water power, that there should be as little restriction upon its use, as is consistent with the rights of other adjacent proprietors. And where such restrictions are claimed, they should be shown by very explicit words in the grants, or reservations, supported by concurrent use, or else by long continued and uninterrupted occupation, which is, of course, equivalent to an express grant.
In regard to the testimony admitted at the trial, to show the declarations and claim of right of the defendants and those from whom they claim title, we have no doubt, that in a case, where the terms of a deed are equivocal, resort may always be had to such testimony. But in the present case, although the testimony was received, no use was made of it, unless as a guide to the court, which does not appear, and which, if it did, would not be ground of error, if the construction finally adopted were consistent with the law. No question was submitted to the jury in regard to these declarations,— which must have been the case, had not the court determined the construction of the deeds, as matter of law. If that construction be not law, without regard to any testimony as to the defendants’ declarations and claim of title, or that of those from whom they derive title, then there must be a new trial.
No question is made, but that the defendants had the right to water sufficient to carry two runs of stones in their grist mill. And our reasons for regarding this as a measure of the quantity of water have already been sufficiently stated. Whether the defendants can claim more than this is the only question of any intrinsic difficulty in the case, as it always appeared to us. The words used in defining the reservation seem to limit it to two runs of stones; but from the circumstances in the case, and especially the fact, that at [413]*413the time of the reservation the defendants1 grantor was in the actual use of more water, and had the power to reserve as much as he chose, he would scarcely be expected to seriously curtail the requisite quantity of water for his own mills already in operation, the value of which might be essentially diminished by such a step. It is supposable, that he might even consent to do this ; but there is very little in the case to show any necessity for doing so, in order to secure adequate power to the factory, or any sufficient motive for the owner of the grist mill so to restrict its power, as essentially to cripple its operations.
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The opinion of the court was delivered by
Redfield, J.
In regard to the question, whether a grant of water privilege is ordinarily to be restricted to the particular use named in the grant, or the us'e is to be regarded as a measure of quantity, the rule laid down by Hall, J., in Rogers v. Bancroft, 20 Vt. 257, is no doubt sustained by the best considered cases in this country. And upon a subject of this character, from our altered situation, the American cases are, as a general thing, more applicable and more reliable, as authority, than the English cases. In the case named the learned judge says, “ There is undoubtedly an inclination in courts to construe grants of water liberally, so as to impose no unnecessary restriction upon its use : and when the words used will admit of one construction, which would limit the use to a particular purpose, and another, which would allow the use specified to be merely a measure of the quantity to be used, the latter construction is adopted.” The reasons assigned by the learned judge, and which are relied upon in most of the cases upon this subject, in this country especially, namely, that such a construction is more favorable to the grantee and conduces most to “progressive improvement in water power,” we may hereafter notice more fully.
The same general remark, in substance, is made by Shaw, Ch. J., in Ashley v. Pease, 18 Pick. 275, and the same general view is there somewhat more amplified, founded substantially upon the same ground. The grant in that case, being for a fulling mill, was held to be restricted to the specific use. And there is, perhaps, more reason to hold grants of water privilege, for driving machinery in [411]*411business which only occupies particular seasons of the year, and those, often, when there is ordinarily an excess of water, limited to that particular use, than in most other cases. And there is in this state almost no kind of business, coming so emphatically under this exception, as a custom fulling and cloth dressing business, or that was so at the date of the deeds, which came under consideration in the present case, — that business being at present but little known.
But even in that business, we should not be inclined to favor such a construction, unless the terms of the deed seemed very clearly to indicate such an intention, and the use had been uniformly consistent with such a construction. Many of the cases cited in argument, in favor of restricting the use, are of this character. Strong v. Benedict, 5 Conn. 210. The case of Johnson v. Rand, 6 N. H. 22, does not seem to make much in the case either way. The change there was only in the mode of applying the water power to the same use, and the wonder is, that any one should seriously have questioned the right to make such an alteration. The contrary rule would absolutely forbid all improvements in the use of water power. Bigelow v. Battles, 15 Mass. 313, is the case of the reservation of water sufficient to carry five thousand spindles in a cotton factory, to be thereafter erected; and the court held it to be a reservation of a quantity of water, which the party might apply to any use he thought proper. Crowell v. Selden, 3 Comst. 253, was the case of a reservation of water power sufficient to carry a grist mill with three runs of stones, — almost identical with the present. The court held, it did not restrict the use to that particular kind of machinery, but was only a measure of quantity.
We think, there can be no doubt as to the general rule of construction of grants of this kind; and that reservations are fully as much entitled to be considered a measure of quantity, as grants, for the reason that the general owner, in parcelling out a water power, would, as a general thing, be more likely to restrict others, than himself, having the power to do so.
We perceive, that one of the reasons, often urged in favor of such a construction of a grant, namely, that it is more favorable to the grantee, will not apply to the case of a reservation, but would, so far as it is entitled to any consideration, lead to a contrary conclusion. But that rule of construction is not properly applicable to [412]*412any case, but one of strict equivocation, where the words used will bear either one of two or more interpretations equally well. In such a case, if there were no other legitimate mode of determining the equipoise, this rule might well enough decide the case. In all other cases, where this rule of construction is dragged in by way of argument, — and that is almost always, where it happens to fall on the side, which we desire to support, — it is used as a mere make weight, and is rather an argument, than a reason.
But the prevailing reason for this construction is one of policy. It is all important to the interests of business, and to the proprietors of water power, that there should be as little restriction upon its use, as is consistent with the rights of other adjacent proprietors. And where such restrictions are claimed, they should be shown by very explicit words in the grants, or reservations, supported by concurrent use, or else by long continued and uninterrupted occupation, which is, of course, equivalent to an express grant.
In regard to the testimony admitted at the trial, to show the declarations and claim of right of the defendants and those from whom they claim title, we have no doubt, that in a case, where the terms of a deed are equivocal, resort may always be had to such testimony. But in the present case, although the testimony was received, no use was made of it, unless as a guide to the court, which does not appear, and which, if it did, would not be ground of error, if the construction finally adopted were consistent with the law. No question was submitted to the jury in regard to these declarations,— which must have been the case, had not the court determined the construction of the deeds, as matter of law. If that construction be not law, without regard to any testimony as to the defendants’ declarations and claim of title, or that of those from whom they derive title, then there must be a new trial.
No question is made, but that the defendants had the right to water sufficient to carry two runs of stones in their grist mill. And our reasons for regarding this as a measure of the quantity of water have already been sufficiently stated. Whether the defendants can claim more than this is the only question of any intrinsic difficulty in the case, as it always appeared to us. The words used in defining the reservation seem to limit it to two runs of stones; but from the circumstances in the case, and especially the fact, that at [413]*413the time of the reservation the defendants1 grantor was in the actual use of more water, and had the power to reserve as much as he chose, he would scarcely be expected to seriously curtail the requisite quantity of water for his own mills already in operation, the value of which might be essentially diminished by such a step. It is supposable, that he might even consent to do this ; but there is very little in the case to show any necessity for doing so, in order to secure adequate power to the factory, or any sufficient motive for the owner of the grist mill so to restrict its power, as essentially to cripple its operations. The conclusion, therefore, is almost inevitable, that the defendants’ grantor did intend to reserve to the grist mill water, which, upon the whole, should be equal to its then present or prospective necessities, with the same extent of machinery then in operation. The quantity which should be measured by two runs of stones, with the right to use it constantly, if necessary, to afford the grist mill the same power then required by it, would accomplish all the objects, which the circumstances of the case seem to indicate as needful, to make the contract consistent with the propable purpose of the parties.
The result, therefore, to which we have finally come in the case, is, that the reservation for the grist mill was, what its terms indicate, such “ quantity of water, as is necessary for the use of two runs of stones in the grist mill,” — the very words of the first reservation. And we think this must be the reservation referred to in the grant of the “ additional privilege,” as no one is bound to look out of his immediate chain of title to find conditions and limitations upon the title, when referred to in general terms. But we think, this exception, or reservation, is to be understood as of the date, when last used, — that is, the “ quantity of water for two runs of stones ” is to be used a sufficient portion of the time to do all the business then done in the grist mill, or which might reasonably be then expected to be done, without essential addition to the machinery. And in no event could the grist mill claim more water power, than the constant use of sufficient to carry two runs of stones. This construction seems to leave the matter in as definite a shape, as it could well be placed, and is more consistent with the words used, than any other, and seems to answer all the ends probably intended by the parties. And this “ quantity,” to this extent, it will be understood, [414]*414the defendants may apply to any use they desire, with this qualification, that while they continue the grist mill in operation, with the same machinery, or an equal amount, with that used at the time of the reservation, it ought to be presumed, as matter of fact, that this exhausts their right; and if they claim to run other machinery during the intervals of the use of the grist mill, the onus is upon them, to show very clearly, that, in the whole, they do not exceed their rightful use. of the water power. So, too, if the defendants elect, at any time, to put their water power to a totally different use, it behooves them to see to it, that they do not exceed their rightful quantity of water. The parties having, at the time of the conveyance, mutually agreed upon a measure of the quantity of water to belong to each, when either departs from that common measure, he assumes the onus of showing, that he does not thereby exceed his rightful quantity of the water power.
It is impossible to regard the reservation of the first mill privilege, in the grant of the “ additional manufacturing power,” as an exception inconsistent with the grant, and therefore void. All reservations and exceptions, conditions, or limitations upon a grant, are of necessity, to a certain extent, inconsistent with the grant, in its most unlimited sense. And so is every qualification of a general form of expression. But it is not in any such sense, that an exception, by being inconsistent with the grant, becomes void. If an exception be of the whole thing granted, so that, by giving effect to the exception, the grant would become wholly inoperative, then it becomes certain the exception could not have been intended in that sense; and as it is impossible to know what it did mean, to save annulling the grant altogether the exception is held void. And so in all the cases, where any such rule of construction has been adopted, it has been for this reason, and as matter of strict necessity. As where one grants all his lands in a certain place, excepting certain lands, and has no other in that place; — or as in the case cited in argument, —Cutler v. Tufts, 3 Pick. 277, — where the general terms used in the grant are, one half of a piece of land, described by metes and bounds, with this qualification, “ meaning to convey one quarter.” Either the grant or qualification here must fall; both cannot stand together.
[415]*415We have not been able to perceive any real question, in regard to the saw mill privilege, which has come to the plaintiffs. It is obvious both the first and the second grant were understood by the parties in the same sense, as a grant of a quantity of water, sufficient to carry the saw mill. And we cannot perceive any necessity of taking any notice of it in the present action. It is certain, that if it were a grant of water for a particular use, which it is not, the diverting it from that use, in good faith, would not operate a forfeiture of the grant. So long as the title to that privilege remains in the' plaintiffs, they can sustain no action upon any covenants running with the grant, where the breach complained of should be their own wrongful act; so that it seems to us, that, the title of that right coming into the plaintiffs, they may use that quantity of water to increase their privilege, if they do not encroach upon the rights reserved to the defendants.
We have not been able to find any such election, or long continued acquiescence in a particular use of the water, by the plaintiffs and their grantors, as will restrict them, in the exercise of their rights, below the fair construction of their deed. To have this effect, the grant should have been so far general, as to be wholly undefined on the face of the grant, — thus evidently looking to the use, as the grantee’s own construction of his grant. Here there is nothing of this character. The plaintiffs, in terms, by the deed to their grantors, acquired the right to use water “at all times,” for the purposes of manufacturing any and every kind and description of woolen, or cotton, or linen, or hemp, or silk goods, or manufactures.” Here is nothing, which looks to any prospective election, in order to determine what residuum belongs to the grantor. It is literally all the water power he possessed, so far as it should, for all coming time, be needful, to the grantee, or his assigns, for the purposes named, or for other uses, not exceeding the same quantity. If the plaintiffs should ever propose to put this power to some other use, and to take more than they had ever used for manufacturing purposes, it is possible there might be some plausible argument raised, for limiting the quantity of water to the largest quantity, which ever had been used for the purposes specified in the grant;— but of this nothing need now be said.
[416]*416This, as we suppose, disposes of the whole case, and upon grounds so nearly the same, as those upon which the case was put in the court below, that we'do not perceive any necessity for sending the case down for a new assessment of damages. And supposing that such a step would be attended with no beneficial consequences to either party, the judgment is affirmed.