Fisk v. Wilber

7 Barb. 395

• Court: New York Supreme Court
• Decided: November 7, 1849
• Status: Published

Opinion

By the Court, Pratt, J.

We have recently had occasion to examine into the power of a court of equity to grant relief in cases of this kind, and to inquire under what circumstances the court will interpose by injunction. (Olmsted v. Loomis, 6 Barb. S. C. R. 152.) We said in that case that it was well established that courts of equity had concurrent jurisdiction with courts of law in cases of private nuisance, but that it was not every case of that kind which would authorize the exercise of such jurisdiction. (Angell on Water Courses, 174. Eden on Inj. 269. 2 John. Ch. Rep. 282. 6 Id. 19. 4 B. & C. 8.) It rests upon the principle of a clear and undoubted right to the enjoyment of the subject in question; and will only be exercised in a case of strong and imperious necessity, or when the rights have been established at law. In case of an injunction, the necessity that the subject matter should be capable of being clearly ascertained is most obvious, in order that the mandate of the court may be certain, and without ambiguity ; that what the defendant is commanded to do or not to do may be certain and definite. (Ripon v. Hobart, 3 Mylne & Keen, 169.

' It is no part of the peculiar powers of a court of equity to construe contracts, or to ascertain the damages to which a party may be entitled in consequence of a breach thereof. These subjects, alone, would not confer jurisdiction. The principle upon which jurisdiction rests, in cases of water privileges, is contained in the preventive remedy which a court of equity can afford, to shield a party from some great and irreparable injury which may threaten him. But the rights in question must be capable of being clearly ascertained, in order that the decree of the court may be obeyed with safety by the party against whom it is directed.

In this case the bill may, and probably does, disclose a case within the equitable powers of the court, provided the construction which the plaintiffs give to the original partition deed be correct. The bill is based upon the assumption that the original deed restricted each party thereto, in the use of the water, to the particular mills mentioned therein ; alledging that the defendants have diverted the water to other uses, and applied it to propelling other kinds of mills and machinery. It then prays that the rights of the parties in relation to the use of the water may be established, and that the defendants may be restricted to such use thereof as they may be found entitled to. If. the plaintiffs are right in their construction of the original deed of partition, there would be no difficulty in restraining the defendants from diverting the water to other uses. The subject of the restriction would be certain and definite. But if they are wrong in such construction—if the parties are not restricted by that deed to any particular use of the water—if the mills are only mentioned therein as a convenient measure of quantity, a very different case is presented. It then becomes a mere question for the court to determine, in the first place, how much water the defendants are entitled to use; and secondly, how much they have in fact used. These are questions upon the pleadings and proofs in this cause extremely difficult to solve. How are we to ascertain the exact quantity of water to which each party is entitled, so that an injunction may be safely decreed, so that the mandate of the court shall be certain. Suppose we should be satisfied that the defendants had used more water than they were entitled to use: Without being able to' ascertain the excess, how shall we prevent them from repeating the injury? An injunction which should merely command them to desist from using more than their just proportion of water would be very difficult to enforce. It is therefore obvious that the court should only interpose by injunction in cases where the subject of it is clear, definite, and certain.

We have felt called upon to make these preliminary suggestions, as well because they may bear upon some of the questions hereafter examined as to correct what seemed to us an erroneous impression prevailing among the profession in relation to the powers of the court, in cases of this kind. From the number of cases presenting similar questions, which have come before us, there would seem to be an impression that it was the peculiar province of a court of equity to construe contracts and conveyances of water powers, and to ascertain and define the quantity of water granted or reserved thereby. We have only to say that the powers of courts of law are amply adequate to define the meaning of contracts; and we know of no peculiar in a court of equity for gauging of water and measuring ^^^^Vuantity to which the parties may be entitled, when the ^^MHrconstruction of the contract shall have been ascertained. As a general rule; an approximation to correctness is all that can be attained; find the damages which a court of law has in its power to grant to the injured party, will generally be the safest remedy, and in most cases amply sufficient to protect the parties in the enjoyment of their rights. We repefit that the equitable powers of the court should only be invoked in a case where the subject is capable of being clearly ascertained, and then only to prevent great and irreparable injury.

The parties to this suit claim under the partition deed executed by Lodowick and Samuel W. Brown, in thd year 1828; the plaintiff claiming under Lodowick, and the defendants under Samuel W. except as to one-half the carding machine and clothing works which were at the time owtied by another person, and now belong to the defendants.

Two important questions arise upon the construction of this deed. First. Whether the parties to it are restricted in the use of the water to the particular mills mentioned therein; and secondly. If they are not so restricted, is there any restriction which limits the full and free right to apply the quantity to which each party is entitled, to any use, whether such use be injurious to the other party or not.

1. As to the first proposition, the counsel for the plaintiff conceded, upon the argument, that the parties were not restricted .to the particular mills therein mentioned. And I give my views ■ upon this point because the point is raised in the case, and also because a clear understanding upon this point may afford some assistance in coming to a correct conclusion Upon the other point.

In grants of water privileges, where the construction is doubtful, that should be preferred whióh would give to the grantee a right to an unrestricted rather than to a limited use of the quantity granted; for such construction is more beneficial to the community, and to' the grantee, and can seldom injure the grantor. (15 Mass. Rep. 313. 18 Pick. 268. 9 N. Hamp. Rep. 454. 6 Id. 22. 3 Shep. 440. 4 Coke, 86. 5 Taunt. 454. 1 B. & Ald. 258. Angell on Water Courses, The water powers furnished by the numerous streams country are rapidly increasing in importantie and value. Taunt. of them are held by grants in which the mills and machinery most in use in the early settlement of the country are mentioned as the object to which the water is tq be applied. The purpose of the purchaser being to apply the water to that kind of mills or machinery, they would of course afford a convenient measure of the quantity of water intended to be conveyed; and hence almost all the early conveyances refer to saw mills, grist mills, and carding machines, and similar machinery. If these grants are to be construed as restricting the use of the water conveyed, to the particular mills and machinery mentioned in the conveyance, as the business wants of the community change, very many of these water powers, would become utterly worthless. And although it may be conceded that the grantees in many cas.es purchased with the intention of applying the water to the propulsion of the mills and machinery mentioned in his conveyance, and perhaps did not even advert to the future, when in the changed condition of the country they might become useless or unprofitable; yet we can scarcely conceive, unless in some very special case, that the parties should have contemplated any other than the grant of an absolute and unqualified right to a given quantity of water. If the parties intended to limit the use, they would be apt to employ such terms as would indicate such intention.

2. The parties to the partition deed were tenants in common of the premises, and as such had an absolute right to use the same as they pleased. Their object seems to have been simply a partition of the premises, Had tbe partition been made by commissioners, under the direction of the court, and had they used, in their description of the premises set off to each party, the same terms used in this deed, there could scarcely have been left room for a doubt as to the construction of the terms. But these parties manifestly had the same object in view, viz. to make a final division of the property; and we can discover no reason why terms used by the parties in a voluntary partition should be construed differently from the same terms when used by commissioners in a report or record.

3. Again; we can not conceive of any motive which the parties could have had in restricting themselves in the free and unqualified use of the water. The partition was evidently intended to be permanent. If they intended to limit the application and use of the xvater they would have made some provision for the consequences of a misapplication or diversion; as there is no provision for any reversion of the estate, if the mills mentioned in the deed should become unprofitable; and if the parties are limited to those mills, in the use of the xvater, the xvhole water poxver must remain unemployed, and lost, for all practical purposes, to both parties. We can not for a moment suppose that the original parties contemplated any such restriction. Besides, they have shoxvn that they did not, by the practical construction xvhich they have themselves given to the instrument. Both parties have applied the xvater to uses not specified therein. We have no doubt, therefore, that the mills mentioned in the deed were simply used as a measure of quantity.

This, as xve said before, the counsel for the plaintiff concedes. He concedes that the deed does not restrict the parties to the particular mills mentioned therein, but he insists that it restricts each party, in the use of the xvater, to such mills and machinery as shall not come in competition xvith, or injure the other party. This brings us to the examination of the second proposition above laid doxyn; xvhich xvas the main proposition relied on upon the argument, to sustain the plaintiff’s case. If the proposition be correct it must groxv out of the terms of the deed, or the relation xvhich the parties sustain to each other.

I. We are utterly unable to find any support for the proposition from the terms of the deed, The deed contains language xvhich might possibly be construed as limiting the use of the water to the mills mentioned therein; but if it be conceded that the parties are not limited to those mills, xve are unable to find any limitation or restriction, except as to quantity.

II. Can any such restriction be implied from the relation which the parties sustain to each other1? We can discover no greater reason for implying such restriction in this case than in any case xvhere a xvater power is granted. It was urged that xve could not suppose that either party intended to give to the Other the right to erect rival mills and machinery. The same might be said with equal pertinency in any other case. Yet we are not aware of any rule which precludes the grantee of a water power from applying such power to any machinery which his interest may dictate; although the grantor may happen to own machinery of the same kind. It is difficult to ascertain any principle upon which such a proposition can be based. The counsel himself was not able, upon the argument, to fix any very definite line which should limit such restriction. It was suggested that the party should be restricted from applying the water to rival machinery—assuming that such use would be injurious to the grantor. But this by no means follows, as a universal rule. It is not probable that the numerous flouring mills at Oswego and Rochester, or the cotton and woollen factories at Lowell, are injurious to each other. In a new country, where timber is abundant, saw mills upon the same stream and in the same neighborhood might be far from detrimental to each other. So that the mere fact that the mills are of the same kind does not determine the question of injury.

III. It must be borne in mind that the rights of the parties here rest in grant, and not in covenant. As the right of each party to use the water is not in terms made a condition of the grant, and there is no provision made for the effect of a forfeiture, we must conclude that the parties intended that their rights under the deed, whatever they were, should be fixed and vested at the time of delivery. But if we attach to the grant an implied condition that the water shall forever be applied to such use as shall not injure the grantor, or, in this case, injure each other, the rights of the parties can never be settled. They would be liable to vary and fluctuate as the business of the country should vary. The water might be used to propel rival machinery so long as such rivalry was not injurious to the other party. But if, from a change of the condition or business of the country, the rivalry should become injurious, the owner of the mills last erected must pull them down. The bare statement of such a proposition is sufficient.

IT. The authorities cited do not sustain any such proposition. The citation from Kent manifestly refers to the general duties of riparian owners, toward each other. The case in 5 Conn. Rep. 210, is an authority, so far as it goes, directly in the teeth of the proposition contended for on the part of the plaintiff. In. that case the court held, from the peculiar phraseology of the grant, that the use of the water was intended to he restricted to the particular mills specified therein; and one of the propositions of the learned judge who delivered the opinion of the court, in support of that construction of the instrument, was that if the use was not thus restricted there could be nq restriction whatever, and hence rival machinery might be erected. It will therefore be seen that this is the converse pf the doctrine, urged on. behalf of the plaintiff in this case.

V. The bill in this cause makes nq such case as that contended for by the plaintiff. Courts of equity have always held strictly to the maxim allegata et probata. (James v. McKernon, 6 John. 543.) The bill proceeds upon the assumption that the deed of partition restricts each party to the mills specified therein. The plaintiff ought not to be permitted to set up an entire new case not made by the bill.

Upon the question whether the defendants have in fact used more water than was used by Samuel W. Brown, for the mills set off to him, it is not necessary to say much. We have already alluded to the principle upon which courts of equity take cognizance of cases of private nuisance, and have shown that neither the bill nor the evidence, as far as this particular point is concerned, presents a case within such principle. Besides, upon the merits, without going over the points examined in the opinion of the justice who heard this cause at special term, we concur in the conclusions at which he arrived. We are satisfied that the proofs do not establish the fact that more water is now used than was used at the time of the partition, for the mills set off to Samuel W. Brown; at least they do not show it sufficiently clear to warrant the interference of this court.

The decree, made at the special term must therefore be af-, firmed, with costs of the rehearing.