Bardwell v. Ames

39 Mass. 333

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1839
• Status: Published

Opinion

At September term 1839, the following opinion of the Court was delivered by

Shaw C. J.

Considerable difficulty, we apprehend, has arisen in the present case, by reason of introducing many questions, both of fact and of law, into the evidence and argument, which are not necessarily embraced in the questions put in issue by the pleadings. The consequence of this course was,'that when certain opinions of the Court, in their nature preliminary, were given, and the cause was then referred to a master, the reference embraced matters which properly ought not to have been included in it. Instead therefore of following the course which has been pursued by the parties, of taking up the report and all the exceptions upon both sides, the Court propose now to restate the opinions formerly given, upon several of the most material points in the cause ; and as most of the matters embraced in the exceptions, may be passed over as not properly before the Court, especially all those relating to the claim of damages made by the plaintiffs Howard & Lathrop, we think the cause may now be finally disposed of, without going into those questions.

In the course now adopted, the Court, for reasons which have heretofore been assigned from time to time by several interlocutory opinions, consider that it is not necessary in this cause, to put a construction upon Bardwell’s deed to the Ameses, upon the point whether the reservations of sufficiency of water to work the grantor’s own mills, were first to be satisfied, or whether the full quantity intended to be granted should be first satisfied, in case there should not be enough to satisfy both, since, from the report which has now come in, it does not appear that the case has yet happened when there was not enough to satisfy both. As that question must depend upon the language of the deed taken in connexion with the subject matter upon which it is to operate, a full and exact knowledge of the mills and of the stream, at the time the deed was made, is essential to the proper decision of that question. The Court will therefore consider that question as entirely open, and unaffected by any opinion before pronounced, to be considered and decided upon its merits, when it properly arises. We shall proceed to recapitulate those parts of the former opinions, with some slight modifications, which affect many of the most material questions in the present cause, omitting altogether the question of construction already alluded to.

The Court, at an early stage, felt some difficulty, arising from the fact, that though Josiah Bardwell and Howard & Lathrop are joint plaintiffs in this suit, yet their titles are not joint, and in some respects their rights are not joint, and in some respects, perhaps, it may appear that Howard & Lathrop might assert rights and claims falling within this general subject of controversy, against these defendants, which Bardwell could not do. And so, on the other hand, the defendants would have some answers to make against Bardwell, which would not be applicable to the claims of Howard & Lathrop. But as the substantial ground of complaint is common to the plaintiffs, as they are all mill owners below, complaining of injuries done to their common rights by the defendants, as the rights are all so intimately connected, both by the proximity of their works and their common origin of title, that if a suit had been brought by Howard & Lathrop it would have been necessary or proper to make Bardwell a defendant, we shall perhaps experience no inconvenience from permitting the plaintiffs to unite in their suit as plaintiffs.

No question, I believe, is raised in the pleadings, upon the jurisdiction of the Court, as a court of equity, though such an objection was taken in argument by one of the defendants’ counsel.

The complainants set forth, that they are mill owners ; that as annexed to their mills they have certain definite rights and privileges in the flow of the water in certain quantities to and from their respective mills, and that the defendants have certain definite rights in the same stream ; and that the defendants have disturbed them in the enjoyment of their rights, both in diverting the water and in unlawfully flooding their mills with an excess of water beyond their rights. The case thus stated is, in legal contemplation, a nuisance, and thus it is brought witbir that branch of the statute, which gives this Court jurisdiction in equity in all cases of nuisance. And upon the question, whether plaintiffs have a plain, adequate and complete rem ■ edy at law, the Court are of opinion that they have not. This we think is manifest from the nature of the case as stated, because the proceedings in equity are necessary both to a proper discovery and to a proper and effectual remedy. Indeed it appears to us, that the proceeding in equity is peculiarly fitted to ascertain, settle and adjust the relative rights and obligations of parties so situated and to secure and enforce them, and that an action at law, which could only look to the past and inquire into damages actually sustained, and for these could only award a sum of money, without protection of the light for the future, would be neither adequate in its nature, nor complete in its effect.

Perhaps, instead of considering in the first instance the particular subjects of complaint in the order in which they are set forth in the bill, and inquiring whether they are or not, and to what extent, well founded, it may be more convenient to examine the relative rights of the parties, and the principles of Jaw and the conventional acts upon which they are founded.

All the mill works and water privileges in question, lie upon the north shore of Connecticut river, near the foot of South Hadley falls, and are all supplied with water by a wing dam and artificial works, by which a portion of the vast flood of water, at that point, is turned in towards the shore, and brought to act upon these extensive works. It is admitted on all hands, and the arguments in the present case all proceed upon the uncontested principle, that upon a river like this, the owner of the shore, or the proprietor of the land bounding on the river, generally, is the owner of the soil to the central line of the stream, commonly called the filurn aquce, or thread of the stream ; and that such an owner, like every other owner of land over which there is a stream of water, has a right to appropriate to himself, and apply to any useful and beneficial purpose, the force to be derived from the natural flow of the water, as it passes over his land, subject only to this limitation, that he does not thereby injuriously affect the common and equa rights of other proprietors of lands above or below his owr., on the same stream. It is admitted that Josiah Bardwell was at one time the owner of the land on the north bank of ine river, to an extent above and below the limits of all the mills and privileges in controversy, and that as such owner, his right extended to the middle of the stream, by a line parallel to the shore on which his land lies. Such an owner is conveniently enough designated by the significant appellation of riparian proprietor, of which term I shall avail myself in the discussion. Bj this designation I understand, an owner of land, bounded generally upon a stream of water, and as such having a qualified property in the soil to the thread of the stream, with the privileges annexed thereto by law.

But it is manifest, that though such is the general right of the riparian proprietor, yet it is in his power, as such owner, to convey away his land without water privileges, that is, the upland without any part of the bed of the river, or the latter without the former, or to combine and parcel them out, in any manner which he may see fit.

It appears that prior to 1826, several parcels of the land in question, with qualified water privileges, had been conveyed by Bardwell or his ancestors, to Newell, to Oliver Chapin and others ; but it seems to us, that it will be quite useless to examine the nature or extent of the rights thus granted, because, whatever they were, they were expressly surrendered to Bard-well, by their respective proprietors, by the indenture of'1826, and that for the express purpose of vesting the whole in Bard-well, in order that a more precise and exact distribution and partition of these rights might be effected, by his grants and reservations, according to the mutual agreement of all the parties interested in them. We think therefore, that from that time, all the parties to that indenture must found and derive their rights from the terms and provisions of that indenture, so far as those rights are claimed in the subject matter of that contract. But it is of importance to consider what that subject matter was ; and we think it was the whole of the water power and mill privilege, created and established by the artificial works then erected for the purpose of appropriating and applying the current of the stream to mill purposes, consisting of the wing dam, the side dam, the guard-gates, the pond, reservoir or general passage, above the mills, and the stone flume. This, we think, was the subject. matter of this inden-» ture, and from and after the execution of it, all the rights of' Bardwell, as well as of his grantees, in all the water privilege which was derived or could be derived by any mode of using these isorks, depended upon the indenture ; any rights which Bardwell had in the unoccupied portion of the river, as riparian proprietor, so far as they could exist, or could be used and occupied without impairing the conventional rights granted by the indenture, remained to him as ungranted, in the same manner as if the indenture had not been made.

It is also manifest, that this indenture effected an entire and complete partition, distribution and apportionment of this entire mill privilege, measured out by a rule, which seems by the parties to have been considered sufficiently accurate, for the practical purposes intended. Had there been a mere grant by Bardwell of the specific quantity mentioned, to the other parties, without any further provision, it might well have been argued, that the reservation by Bardwell to himself was nugatory and void, because all not granted would of course be reserved to himself. But such is not the frame of this indenture. Bard-well first grants to Enoch Chapin and wife, (whose estate has since been acquired by the plaintiffs Howard & Lathrop,) a given quantity of water, such as will flow through four gates of specific dimensions and head of water; then to Howard & Lathrop, Willard and Stephenson, (since also acquired by Howard & Lathrop solely,) a quantity of water which will flow through five gates of specific dimensions and head of water ; he then reserves to himself a quantity of water which will flow through twelve gates, of specific dimensions and head of water ; also, for a lower privilege not then nor yet occupied, a quantity equal but not exceeding that granted to Howard & Lathrop, Willard and Stephenson, by the same instrument. Then, after various stipulations and covenants, it is provided, that if at any time there shall be a deficiency of water, the parties shall be entitled to draw the same only in proportion to the rights and interests above expressed, that is, to the rights granted and to those reserved respectively, and in case there shall be a surplus, they shall all be entitled to use the same ratio or proportion. It is elsewhere provided, that until the lower privilege shall be occupied, the whole stream shall be apportioned among the three privileges, in the ratio established by the admeasurements of the gateways, and afterwards it is to be apportioned in like manner among the four privileges. It is obvious from this view, that by means of these grants, reservations and covenants, the whole of this mill power and privilege as created by the works then erected, was embraced ; and that the admeasurements specified in the indenture, by the size and shape of the apertures and head of water, did not constitute and determine the extent of the rights of the parties or either of them, but served to form a rule of apportionment, by which the whole power, whether it should exceed or fall short of the aggregate of all the powers particularly specified in the grants and reservations, should be divided and apportioned. These rights being all derived from the same source, at the same time, by an act to which all interested were parties, must be considered as precisely equal; and neither can claim any advantage over the other, by prescription, usage, prior occupancy, location or otherwise.

One other view it seems proper to take here of this indenture, as it will embrace some of the questions raised by the parties. In each case, although certain specified gates of given dimensions and head of water are mentioned as then in use, this is obviously done to specify the quantity of water, and not to limit the parties to the use of the same gates, or to the use of so much water or water power for the same works ; but, on the contrary, it is expressly provided, that the water may be applied to any other works, and drawn through any other gates of like capacity. In the grant to Chapin and wife, it is “of a privilege of drawing and using, for the benefit of the oil-mill, or such other mill, works or machinery as may be erected or used upon the site thereof, from the pond and flumes as now erected and in use, so much water as may pass through the (four) gateways now used in said oil-mill, or others of equal capacity, (that is, such as will admit water of equal power,) viz.” &c. The same phraseology is used in the grant to Howard & Lathrop, Willard and Stephenson ; it is for the benefit of the paper-mill, or such other mill, works or machinery as may be erected or used upon the site thereof, and through gateways (described) now used in such paper mill, or others of equal capacity. It will be recollected, that in both these cases, the sites of the oil-mill and the paper-mill were fixed b) previous grants of the land on which they stood. But as Bard-well owned all the land above the oil-mill, in the reservation to himself there is still greater latitude, the water being reserved for the benefit of his mills, works and machinery near said pond, or others which may be erected on the same site or near the same ; the water to be taken through the gateways (described) now in use by said party on the premises or others of equal capacity. The only restriction in this case is, that the water of three of the twelve gateways, or an equivalent, is to be drawn from the pond without the stone flume, and that of the other nine is to be drawn from the stone flume.

From this view of the subject, it appears to us that the parties did not intend to restrict themselves or each other, to any species of mill work, or to any location of gates. It would have been contrary to the interests of themselves and of the public, in restraint of enterprise and improvement, if they had done so. They expressly reserved to themselves, as separate proprietors, the right of applying this power to such objects as they and their successors should, from time to time, deem most beneficial; and for this purpose, of erecting such buildings and placing wheels in such positions, as should be best adapted to the structure of their works, limited by nothing but the quantity of water which each might draw from the common fountain. This water is in terms to be taken from the pond and flume as then erected and in use. It is a general rule of construction, applicable to all grants, and certainly not less applicable to mutual grants, that the right to enjoy a certain privilege draws after it a right to the use of all the means necessarily incident to the beneficial enjoyment of that privilege. We are all of opinion, that the right to erect new buildings and machinery, and the right of placing wheels and gates adapted to the action of such machinery, necessarily draw after them, as an incident, the right to make new flumes and openings into the pond and main flume, for the purpose of drawing the quantity of water to which the party is entitled, and applying it most beneficially to his works. Such new openings, therefore, into the old dam and flume, so far as they are necessary and convenient to adapt the power to new works which the party has a right to erect, and secured by flumes and other works of proper strength and character to prevent waste of water or danger to the common works, are not a violation of the rights of the other parties.

It has been strongly argued, that this construction is opposed by that clause in the indenture, which provides that the dam, pier, guard-gates, stone flume, and the general passage for the water into that flume, shall be and remain situated as they now are, forever, unless altered by mutual consent of the parties, and be occupied in common for the purpose of obtaining water and making repairs, without interruption or hindrance from any party. But we think, that making openings into the dam or flume, in order to take water for mill purposes, is not an alteration of them, within the meaning of this provision. The main object of this stipulation was to provide, that the position, location and character of these common works, in which the parties had a common interest, should not be changed without the mutual consent of all. But the other parties have no interest in the question, where each shall take his allowed appor tionment of water, if he does not exceed the quantity or injure the common works. Besides, every part of the instrument must be taken into consideration, in construing a particular provision, and must be so construed as to give to each its intended effect. Here there is an express provision, that each proprietor may take his appropriate share of the water from the common reservoir, by the gates specified or others of equal capacity. But no other can be used without an opening into some of the common works, the pond or flume. It must therefore have been considered, that such an opening was not an alteration of the common works, as the parties understood it.

If it be contended, that such new openings will weaken the dam or flume, it may be observed that this would be a violation of the covenant that the dam &c. shall be and remain, &c. and therefore such openings into them can be made only on the terms of making them equally strong and efficacious, for the general purposes intended, as they were before such openings were made. Or if it be insisted, that it may subject the other parties to expenses, we think the objection is answered by a provision in the indenture, that the lesser flumes or passages, which conduct water from the main flume to the wheels of the several establishments, are to be supported by the respective owners of the wheels. And this duty is enforced by the general covenant at the close, that each of the parties will well and truly do, permit and suffer all and every thing in and by the foregoing on the part of each mutually and respectively to be done, permitted and suffered.

We may now proceed to consider the conveyance by Bard-well to the defendants, and the rights which they derived under it. It is manifest that Bardwell had no power to make any conveyance, which would infringe upon the conventional rights of the other parties as fixed by the indenture ; and by expressly reserving in terms, all the rights so conveyed to them, it is quite evident that he did not intend or attempt to make any such conveyance, and by inserting this reservation in the deed to the defendants, with an express reference to the indenture, as the authoritative measure of the rights thus granted, he intended that express notice of the existence and reservation of' those rights, should accompany his grant, both to the defendants and to all those who might take derivative titles from them. By this reference to the indenture as the basis of this conveyance, the defendants are presumed conclusively to have notice of all its terms and provisions.

The question then is, considering what interest and power Bardwell had in the subject matter, and the legal effect of the terms and provisions of his deed, what interest or title passed thereby to the defendants. The grant was of a large tract of land, on a line four feet west of Bardwell’s grist-mill, running northerly to the land of the proprietors of the locks and canals, that is, to some distance up the north bank of the river, then along the line of the land of those proprietors and near the bank of the canal westerly about sixteen rods, thence south erly to the middle of Connecticut river, thence down the river till it intersects the first mentioned line. This tract embraces a large part of the land held by Bardwell at the date of the indenture, including the saw-mill site, and extends far enough up stream to include all the dams and artificial works, which constituted the subject of settlement, and off towards the middle of the stream, so as to include a considerable portion of the bed of the river, without and beyond the artificial works. So far as Bardwell, after the execution of the indenture, retained rights without and beyond'the wing-dam and artificial works, as riparian proprietor, all those rights passed to the defendants. But it must be recollected, that as to the whole and entire right of Bardwell in the appropriated water power and artificial works, it had ceased to be local and had become exclusively conventional, to be sought for in the indenture. Accordingly the water power intended to accompany this grant of land, was not understood by the parties to be incidental to the grant of land, but was the subject of a special grant thus expressed :—“ Also the right and privilege of drawing and using, for the benefit of a paper-mill, or such other mill, works or machinery as may be erected or used upon the above-granted premises, so much water from the mill pond on said river upon and above the premises, as is equal to the quantity and power to which Wells Lathrop, Eli Stephenson, Charles Howard and Daniel W. Willard, or their assigns, are entitled by virtue of” the conveyance of the 26th of July, 1826, or any other conveyance from Bardwell to them or their assigns, “ a part of such water, not exceeding one half, to be drawn from the stone flume, and the residue thereof from the pond above said flume.”

One of the principal difficulties in the case, I may say, speaking for myself, has been in putting a satisfactory construction upon this clause of the grant, and in ascertaining the extent of the water power intended to be conveyed by this clause in the deed.

One of the fundamental rules of construction is, to ascertain what the parties intended by the language they have used, and to carry that intent into effect, so far as it can be done con sistently with the rules of law and other provisions of the in strument; and another rule of equal importance is, to look into every clause and provision of the whole instrument, in order, if possible, to ascertain that meaning, where the words are doubtful.

The difficulty may be thus stated; and it arises, not from any thing apparent in the deed itself, or the indenture to which it refers, but to evidence aliunde. The works in question stand upon one continuous line, on land sloping downwards, from the upper mills to the lower, in the course of the stream. The consequence is, that the head and fall, or the distance from the surface of the water above the dam to the bottom of the raceway, where the water strikes after it has passed the wheels on which it operates, is somewhat greater at the lower than at the upper mill on the stream. It is in evidence from persons skilled in this subject, that the effective power of water upon machinery does not depend solely upon the dimensions of the aperture or gateway through which it is drawn, and the height of the column or head of water under which it is drawn, but that it also depends upon the greater or less fall of the water from the gateway, on or through the wheels, to the ground or bottom of the raceway upon which it falls. As the defendants’ works are the highest on the stream, and of course have less fall from the gateway than those of Howard & Latbrop, which are the lowest yet erected on the stream, it is contended by the defendants, that in order to obtain an equal effective power, for mill work with that of Howard & Latbrop, they must have as much larger a quantity of water as will compensate for the difference of fall. On the contrary, it is contended by the plaintiffs, that this difference of local position and the consequent difference of fall, was not contemplated by the parties ; but that by referring to a description of the privilege granted to Howard & Lathrop by the indenture as the measure and limit of Bard-well’s grant to the defendants, the parties intended the same thing as if that description had been inserted in terms in the deed, and in that case it would have been governed by the number and dimensions of the gateways, under the respective heads of water, as therein expressed, without reference to any other element of calculation.

Upon the best consideration which we have been able to give the subject, the Court are of opinion that the latter is the true construction, and that the parties intended that the quantity of water power conveyed should be determined by the apertures and head of water, without regard to the consideration of more or less fall of the water from the aperture to the bottom of the race.

It perhaps will not be easy, withir a short compass, to set forth all the considerations which have led the Court to this conclusion ; and in giving their opinion I must content myself with stating a few of the most prominent of those reasons.

The description is, so much water as is equal to the quantity and power to which Howard & Lathrop, Willard and Stephenson are entitled by the indenture or by any other conveyance. Now as no other conveyance is shown or suggested, it is the indenture alone to which this deed refers. In looking into the indenture, it appears to us manifest, that the elements intended to be referred to in measuring and apportioning the water power, were the dimensions of the apertures and the head of water, under which they were respectively drawn. It appears from the evidence, that these elements being given, there is an easy rule for ascertaining the quantity of water flowing in given times, and thus these elements are easily referred to a common measure, that of quantity, by which one such gate can be compared with another. Such comparison was an important object in framing that indenture, and if the indenture itself did not afford the means of making it, it would fail of its leading object, that of dividing out and apportioning the whole power, and its provisions would be nugatory. If any other element of computation was intended to be referred to, it must have been expressed. And it must be considered, that there was the same difference of fall, between the sawmill site and Howard & Lathrop’s paper-mill, in the indenture, as between the defendants’ paper-mill and the same works of Howard & Lathrop. Perhaps one reason for overlooking this difference of fall, might arise from the fact, as disclosed in the evidence, that the wheels of the lower mills, in times of high water, were more liable to be flooded by back water from the river, than those of the mills higher up, which would in some measure counterbalance the advantage of greater fall. It may also be considered, that the question of quantity was the one in which they were mutually interested to restrict each other. But whatever may have been the motives of the parties, we think it clear from all the terms of the instrument to which they were parties, that this was the mode of admeasurement and apportionment, to which they meant to refer. The first instance of reference to any standard of measurement, is in the grant to Chapin and wife, which is of <cso much water as may pass through the following gateways, now used, or others of equal capacity, (that is, such as will admit water of equal pow er,) viz.” &c. and then it proceeds to enumerate four gates, giving the length of each, and the height, and the head of water, from the top of the flume to the bottom of the gateway. Here, we think, the words in the parenthesis were intended to put a construction upon the word capacity. In its natural meaning, the word “ capacity ” might be understood to mean dimensions ; but we think the explanation was intended to indicate, that capacity of gateway for mill purposes, did not include dimensions alone, but also head of water, which would give the velocity and thus afford a means of comparing one gateway with another, by reducing both to a common measure, that of quantity. At all events, “water of equal power” did not include any computation of fall, because these gates were all to be taken on the same site, which was a small one, and between one part of which and another there was probably no perceptible difference of fall.

The next instance is in the grant to Howard & Lathrop, Willard and Stephenson, in which it is described as “the right of drawing and using so much water, as may pass through the following gateways, now used, or others of equal capacity.” Here the gates are described by length, height, and head of water, without reference or allusion to any other element of computation. And it may be remarked in passing, that this is the specific description referred to in the deed of Bardwell to the de fendants, as the measure of the right conveyed to them.

In the reservation by Bardwell of his own rights, in the indenture, the description is the same, the right and privilege of drawing and using so much water as may pass through certain gateways of specified length, height, and head of water, or others of equal capacity. So in the reservation of the lower privilege, it is provided that the water to be drawn out and used, shall not exceed in quantity, but may be equal to, that which the party of the third part (Howard & Lathrop, Willard and Stephenson) are entitled to by the indenture. Can it be doubted that the mode of ascertaining this quantity is by reference to the standard given, viz. dimensions of gateway and head of water ?

But it appears to us, that there are other provisions in this instrument which strengthen this conclusion. There is an agreement that the expenses of keeping up and maintaining the dam and other common works, (exclusive of the stone flume, in which all did not equally participate,) shall be borne by the parties, in proportion to the water power which they respectively derive therefrom, the proportion to be determined by the capacities of the gateways. Here they seem expressly to have put a construction upon the term water power, as intended to be used by them. They had already put a construction upon the capacity, considering it to mean dimensions of aperture and head of water combined, and here they declare, that water •power is to be determined by capacities of gateways.

Now it appears to us, that when the parties to Bardwell’s deed to the defendants, instead of specifying the right intended to be conveyed, describe it in general terms, as a right equal to that granted in another instrument referred to, when we go to that instrument we take it not merely for the terms in which the right is expressed, but we must resort to the same standard of admeasurement as we find adopted in the instrument referred to, unless there is something in the deed itself to qualify or limit this application.

But we think there is something in the deed from Bardwell to the defendants, to countenance the same conclusion. The grant is, of so much water as is equal to the quantity and power to which Howard & Lathrop, Willard and Stephenson are entitled by the indenture. The difficulty is in applying the terms “ quantity and power.” The argument of the defendants assumes, that the same quantity will not give the same power, and therefore no construction will satisfy both terms. If the quantity is the same, the power is different ; so if the power is the same, the quantity must be different. It may be perhaps contended, that if they cannot be reconciled, the words are to be taken most strongly against the grantor, and that the grantee may take by that which will be most beneficial. But this is a rule founded on the assumption, that it does not carry into effect the intention of the parties, and is only to be applied in the last resort, when all attempts to ascertain the intent of the parties have failed.

By this deed the defendants were let into a participation of common privileges, and made subject to common duties, not only with their grantor, but with others. There is a stipulation, that this grant is made on condition that the grantees and their assigns shall contribute towards the expenses of the dam and other common works for the general use, in proportion to the water power which they derive therefrom, compared with °the other owners thereof. This refers directly to the indenture, to fix these proportions. But by the indenture the parties had fixed the ratio of contribution, in the same manner, to be according to the water power they respectively derive therefrom, but they therein proceed to explain what they mean by this term, by adding “the proportions to be determined by the. capacities of the gateways.” Here then by the terms of their deed they are to contribute with others to certain expenses, in proportion to their water power. The ratio of the contributions of those others, is fixed by a definite rule ; are these new participators to contribute according to their water power, to be measured by another and different rule ? No such rule is laid down ; no means given for settling a common measure, or means of comparison of these different powers, except dimensions of gateways combined with head of water, and no intimation that any such different rule was in contemplation. We think therefore that they referred to the indenture, as the means of adjusting the ratio of contribution, and that it is to be resorted to as well to furnish the rule and standard of power, as the rate of contribution. It is observable, that -in the words of grant, it is not a quantity of water which will afford a power equal to that of Howard & Lathrop, but so much water as is equal to the quantity or power, &c. Strictly speaking, so much water cannot be equal to a power. It requires explanation and exposition. What is the true one ? We think both terms were used for greater caution, and that the term power was intended to be used, not in a vague and indefinite sense, but in the sense put upon it by the indenture, to which the parties referred throughout, “the proportion (of power) to be determined bv the capacities of the gateways.” On the whole, taking the two instruments together to ascertain the meaning and intent of the parties, we are all of opinion, that by this grant, Bardwell conveyed to the defendants a water privilege equal to that conveyed by the indenture to Howard & Lathrop, Willard and Stephenson, to be determined by the number and dimensions of the gateways, and the head of water under which they are drawn, without regard to the difference of the fall below those gateways, arising from the difference of the position of the relative works on the stream, and that the defendants have no lawful right, by their conveyance from the plaintiff Bardwell, to take an increased quantity of water in consequence of such difference of fall.

One other point of construction arises upon this deed. It provides, after the grant of the described water power, that a part of such water, not exceeding one half, is to be drawn from the stone flume, and the residue thereof from the pond above said flume. Upon the construction of this clause, and as between the defendants and the plaintiff Bardwell, the Court are of opinion that the defendants’ construction is correct, and that they have a* lawful right to take any quantity of the granted water power, less than one half, from the stone flume, and may take the residue, being any portion short of the whole, from the pond. But as between Bardwell and the other plaintiffs, there is a restriction upon Bardwell’s own power, contained in the indenture, which may or may not restrict the defendants’ right to draw from the pond.

In that part of the indenture which carves out Bardwell’s own right, for twelve gates, of specified dimensions and head of water, it is provided, that three gates (described) or an equivalent, are to be drawn from the pond without the stone flume, the others to be drawn from the flume. Here we think no option was left. Whatever may have been the motives of the parties, in making this provision, we think they had a right to make it, it was made in plain and explicit terms, and the other parties have a right to insist on it. Bardwell and the defendants together, as against the- other plaintiffs, Howard 8c Lathrop, now hold the rights which Bardwell originally held under the indenture, but no more. Bardwell had a right to convey to the defendants his whole right to draw from the pond, reserving all his own power to be drawn from the flume. If therefore the quantity drawn by the defendants from the pond, exceeds the quantity which Bardwell had a right to draw thence by his three gates, including as it did the great sawmill gate, then the defendants, although they have a good right so to draw as against Bardwell, have no such right as against Howard & Lathrop, because they cannot take what their grantor had no power to convey, and therefore they must be restrained to the quantity expressed by those three gates ; but if the quantity thus taken from the pond does not exceed the quantity which Bardwell had a right to draw thence by his three gates, then the defendants do not in this respect exceed their lawful right or infringe the rights of the plaintiffs.

Having thus endeavoured to ascertain the rights of the parties, by ascending to the sources of them, it only remains to see how the particular complaints of infringement, made in the present case, are sustained.

1. As to the charge of making new openings into the pond, the Court are of opinion, that the making of the thirteen feet opening in the old dam by the defendants, was not a violation of the provisions of the indenture ; that they were not obliged to take the water at the same place at which it was taken by the old saw-mill flume, but they'had a right to take the same quantity by those or other gates of equal capacity ; that the provision in the deed of Bardwell to the defendants, that they should not take more than half the stipulated quantity from the stone flume, left them at liberty to take more than half from the pond, and unless the quantity thus taken exceeds the quantity which by the indenture Bardwell had a right to take from the pond by his three gates, that opening by the defendants into the pond is not an infringement of the plaintiffs’ rights ; that the general provision in the indenture, that no alteration should be made in the wing-dam, "guard-gates and general passage, without mutual consent, does not restrain the parties from making such openings into the dam and stone flume, as might be necessary to enable them to enjoy their respective rights of water in the most convenient manner, but that that covenant had another and distinct object, to secure to all the parties the preservation, security and identity of the common works. Nor does the fact, that the defendants take the water in a more direct line with the current, make any difference, because the quantity of water which they have a right to draw, does not depend upon and cannot be measured by the capacity or direction of the opening from the common reservoir to the private flumes, but by the capacity of the gates and the head of water above them, by which the water is drawn from those flumes to the wheels.

2. If the defendants have erected works and opened gateways, in their private flumes, capable of taking a much larger quantity of water than they have a right to draw, the Court are of opinion, that it would be contrary to equity thus to erect works and open gates therein which would be capable, in their ordinary action, of drawing a much larger quantity of water than they have a right to take from the common reservoir, especially when those gates are under and within their own mill and withdrawn from observation ; and that equity would award an injunction against the opening of such gates, and require the defendants permanently to close a portion of them, leaving such only as would enable the defendants to draw the quantity to which they are entitled. The natural presumption is, when gates are placed in a mill which may all be used at once, that it is the intention of the owner at some time so to use them, and therefore if the defendants have works of such a peculiar character as to require the alternate action of particular gates, so that when one is open, a corresponding one is necessarily closed, this is out of the usual course of things, and in order to obtain the right to open a greater capacity of gates than it is intended at any one time to use, it is incumbent upon the defendants to set out such special case, and to give such pledge or security as may be devised and adapted to the case, so as effectually to protect the rights of the other parties.

But in order to determine what the extent of the defendants’ rights is, it is necessary to resort to the indenture. The grant by Bardwell to D. and J. Ames, is of a right of using so much water as is equal to the quantity and power to which Lathrop, Stephenson, Howard and Willard are entitled by the indenture. In determining what this water power is', according to the views before taken, we are not to take the given number and dimensions of gates, and head of water, mentioned in the indenture, as the measure of the power assigned in the partition to Howard & Lathrop, Willard and Stephenson, but such a proportion of the whole water power of the stream, as the power expressed by their gates bears to that expressed by all the gateways mentioned in the indenture, including those granted to Chapin and wife, Howard & Lathrop, and Willard and Stephenson, and those reserved by Bardwell for himself. By the indenture the rights of the defendants will be larger, until Bardwell shall occupy his lower privilege, and when that privilege is occupied, they must be in a corresponding manner reduced. By the indenture, Bardwell, for his lower privilege not yet occupied, has a right to a quantity of water equal to that assigned by the indenture to the party of the third part, that is, to Howard St Lathrop, Willard and Stephenson. But until Bardwell shall use his lower privilege, the parties have a right to divide the whole stream in the proportion of the quantity of water expressed by the gateways of the parties, granted and reserved in the indenture, without regard to the lower privilege Laying that lower privilege out of the case for the present, the mode of ascertaining the extent of the defendants’ right, is this.

First consider what quantity of water would be discharged by the gateways, including head of water, reserved to Bard-well;— Second, the quantity to be discharged by the gateways assigned and granted to Chapin and wife ; — Third, the quantity to be discharged by the gateways assigned and granted to Howard & Lathrop, Willard and Stephenson ; — and consider these as the aggregate ; which, for the purpose of computation, may be called 100.

Suppose Bardwell’s quantity, thus measured by his gateways and head of water, to be in proportion to the whole as 59 to 100, he is put down ... 59

Suppose Chapin and wife’s, measured in the same way, to be . . . . . .12

Howard & Lathrop, Willard and Stephenson’s, . 29

Then the course would be, to ascertain the whole available quantity of water afforded by the stream for mill purposes, and she share of the defendants, under their grant from Bardwell, in the case supposed, would be twenty-nine one-hundredth parts of the whole available quantity afforded by the wing-dam, stone flume and artificial works.

After Bardwell uses his lower privilege, being a quantity equal to Howard & Lathrop, Willard and Stephenson’s share, another proportion must be established. If that quantity may be expressed, following the illustration already assumed, by 29, then the power to be distributed must be divided into 129 parts, and the defendants’ proportion under his grant would be 29 one hundred and twenty-ninth parts of the whole quantity afforded by the stream.

But as it has not been satisfactorily shown by the evidence, that the defendants have drawn a greater quantity of water from the common reservoir than they would have a right to do by this computation, and as the defendants have disclaimed any intention to take a larger quantity than they are entitled to, we think it is sufficient now to declare the rights of the parties, as we consider them, without ordering any injunction on the subject.

3. The Court are of opinion, as already expressed, that the defendants, as the grantees of Bardwell and as riparian proprietors under that grant, acquired a property in the bed of the river and in the stream without and beyond the wing-dam and other artificial works of the proprietors of the mills, and, as such riparian proprietors, might erect any works, and make any use of the stream, which could be done without interfering with the works of the proprietors of the mills, but that they had no right, under this title, to alter or change these common works in any respect. Therefore the Court are of opinion, that the raising of the dam without and below the wing-dam, seven inches, or any other quantity, higher than the wing-dam, by the defendants, so as to throw back the water upon that dam, is a change and alteration of that work, which the defendants had no right to make, was a violation of the agreement that the wing-dam and other common works should be and remain situated as they were unless altered by mutual consent, and against the erection and maintenance of such dam, if it causes any damage to the plaintiffs, they are entitled to relief

4. The Court are of opinion, that the entire right of the mill power and privilege, as created by the wing-dam and other common works, erected at the date of the indenture, was par-celled out and distributed among the parties and apportioned and adjusted by the indenture ; that this right extended to the use and enjoyment of the raceway then in use for conducting water from the mills, which thenceforth became a common and conventional right, regulated by the indenture, and that neither party could do any act to render that raceway less beneficial ; that although at that time this raceway was a part of the river, yet that when the defendants erected a wall on their own land, on the southerly side of their building, to keep out the waste water of the river, they had a right so to do, provided it did not injure or impair the rights of the other parties, and that when the plaintiffs continued this wall down the river, they had a right to do so, if it did not prejudice the other party, and that thenceforth the space between this wall and the shore became the common raceway of the parties, to be used in connexion with their respective water rights, as settled by the indenture. Even if the plaintiffs, by their wall or other works, narrowed the raceway, as was contended by the defendants, we think that it would not justify an aggression on the part of the defendants ; that under these circumstances the defendants had no right to raise and maintain the penstock by which water is drawn into their mill and thence into the common raceway, whereby an additional quantity of water is thrown into the raceway, beyond what is or can be drawn from the common reservoir ; and that this is a violation of the rights of the plaintiffs, and a nuisance, against which the plaintiffs are entitled to an injunction. We are also of opinion, that the introduction of this large quantity of water, by works erected without and below the common works of the'parties, would not be justified by the fact, if proved, that the defendants, by their wall, had kept as large a quantity of back water from the wheels of the other parties, as this new work was calculated to throw upon them.

It will, I presume, be understood, from what has been heretofore said, that this opinion does not affect the right of the defendants as riparian proprietors, to erect any penstock o other works, if any can be erected, without and below the common works of the parties, to take the surplus water of the river, after it has flowed over or by the common works, the same not interfering with those common works, or the several mills and works of the parties, below them and connected with them.

The ground upon which the Court have come to the conclusion, that this cause could be decided without considering at large the matter of the master’s report, and the various exceptions to it upon both sides, arises from a consideration before suggested, that much of that report and the matter of the controversy embraced in it, is not properly open upon the bill and answer as they now stand. This is owing to no fault of the master, but to inadvertence and want of due precision in drawing up the rule under which the reference was had. The question is, whether upon the pleadings as they now stand, the plaintiffs can claim any relief, either by way of injunction against future encroachments, or damage for any alleged past injury, whatever may be the construction of the deed from Bardwell to the defendants, and the rights of the grantees under it, founded on the assumption that the defendants had no right to draw water to the amount of 12,335 cubic feet per minute from the common reservoir. The construction of Bardwell’s deed, as contended for by the plaintiffs, and the evidence offered by them, assuming that construction, tends to show that the defendants have a right to draw only about 4000 or 5000 feet, and the damages claimed are founded upon the assumption, that this is so established. But if this be so, in fact and in law, it is not the right and the infringement of it which they have set forth in their bill, and which is put in issue by the answer. In this case, Howard & Lathrop and Bardwell are joint plaintiffs, setting out the same grievances and claiming the same relief. This is not mentioned in reference to the question, whether in the same suit in equity one plaintiff can have a decree for one measure of damages and another for another or none, upon a bill properly framed with reference to such claims ; but in this bill both plaintiffs unite in the same averments and are bound by them.

By recurring to the bill, it appears that the gravamen of the complaint, as to this part of the case, is, that the defendants had derived from Bardwell a right to the use of water power from the common works, equal only to that of Howard & Lathrop at their mills as fixed by the indenture, or by any subsequent deed to them from Bardwell, and that the quantity to which they were thus entitled was equal to 12,335 cubic feet per minute and no more ; and that the defendants were about erecting and had begun to erect works which would require *» much larger quantity than 12,335 cubic feet per minute, and that they threatened and intended to use a much larger quantity and to discharge it into the common raceway ; and the bill prays an injunction to prevent the defendants from drawing such larger quantity, over and above the quantity which they had a right to use, that is, over 12,335 feet.

Several other distinct subjects of complaint are embraced in the bill, viz. altering and changing the common works, by erecting the dam below the side dam, by cutting new openings into the common works, and by introducing a flood of water into the common raceway, from the river, by means of the penstock, to the great injury of the plaintiffs as proprietors.

To these several subjects, which are distinct from the question now under consideration, and which do not necessarily involve the construction of Bardwell’s deed to the defendants, or the relative rights of the plaintiff Bardwell and the defendants as to the quantity of water to be drawn by them, respectively, from the common works, the attention of the Court has already been directed and an opinion expressed.

But as the bill avers, that the defendants had no right to take more than 12,335 cubic feet per minute, and an intention to take more, the answer applies to and traverses the averment in the bill, and therefore the matter put in issue is not whether the defendants have a right to take as much, but whether they have a right to take more. In truth, the defendants did insist by their answer, that they had a right under the deed to take a much larger quantity of water from the common works in cubic feet, than Howard & Lathrop, to compensate for Howard & Lathrop’s greater fall, in order to give them an equal power. But they do by their answer deny that they have used or intended to use a greater quantity than they are entitled to under their deed.

The matter put in issue by this part of the bill therefore is, whether the defendants had taken, or threatened or intended to take, from the common works, a greater quantity of water than 12,335 cubic feet per minute, and as it does not appear by the report, that they have taken more than the quantity stated, the Court are of opinion, that whatever may be the right proved before the master, the plaintiffs, on these pleadings, cannot have any decree for damages upon that ground, or for an injunction to restrain the defendants from taking any quantity not exceeding the 12,335 cubic feet per minute. As we understand the report, all the damages awarded by the master to Howard & Lathrop, are given for damages supposed to have been sustained by them, from the use by the defendants of a larger quantity of water than the master finds them entitled to, upon the principles adopted by him, which would be much under 12,335 feet, not exceeding 4000 or 5000 feet, or at least, we take this to be the main ground on which they are given. But as it appears, that upon these pleadings this claim of damage was not open, no decree for this damage can now be given.

In regard to these damages it may be proper to make another suggestion. When this bill was brought, the wrongs sought to be redressed were anticipated, not actually suffered. All the acts and torts for which damages were awarded, were done, it is believed, after the suit was commenced. It may be a question, whether damage in such case can be awarded without a supplemental bill, showing that the injury feared had been realized ; but whether a supplemental bill, in point of form, would be necessary or not, is immaterial, because if a supplemental bill could be filed, it must follow the original complaint, and set forth actual and subsequent damages arising from the same cause set forth in the bill. That original cause of complaint was the drawing over 12,335 feet; the supplemental bill must be for the same substantive cause ; therefore, for the reasons already given, such supplemental bill could not aid the plaintiffs to recover the damages reported by the master.