Hurd v. Curtis

48 Mass. 94

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1843
• Status: Published

Opinion

Shaw, C. J.

Instead of stating at large the opinion of the court on the whole case, it is proposed now to express an opinion upon the leading questions which have been argued upon the construction of the deeds under which the plaintiff claims title to the water privilege. The plaintiff claims damages of the defendants, on the ground that they have, for a long time, taken and used a larger quantity of water, at their mills, than they are entitled to take according to the relative rights of the parties.

1. The first question arises upon the construction of the deed from Allen C. Curtis, William Curtis, John Nichols and Rufus Ellis, to John Dodd, daled April 20th 1824. This is the deed under which the plaintiff claims, by several mesne conveyances.

The court are of opinion, that this deed conveyed to Dodd a fee in the tract of land therein described, bounded on Charles River; and also, to be used and enjoyed in connexion therewith, one paper mill right, as a first privilege, being a right of water for one paper mill with two engines, and with certain incidental rights to the surplus water, “ being one of the six paper mill rights and privileges established,” &c., by the agreement of 26th July 1816, recorded, &c. By this reference to that record, the agreement of 1816 is to be resorted to, in construing this deed from Curtis and others to Dodd, in order to ascertain and define what a first paper mill right and privilege is, and the incidents belonging to it, in the same manner, in all respects, as if that agreement was set forth and embodied in the deed. By that indenture of agreement it appears, that each of the parties to whom such paper mill privilege was assigned had a right, in common with five others having equal paper mill privileges, and one a right for a fulling mill and carding machine, (being also a first privilege,) to use the water at all times, without preference, when there was enough for all; and it contained provisions stipulating for a special mode in which each should use and abate, in proportion, when there should not be enough for all.

These seven, namely, six paper mill rights and one fulling mill right, are by the indenture made first rights, to be supplied equally, and to abate proportionably, without preference. The second right, or first right to the surplus water, was, assigned to the saw mill of Hurd & Bemis, on the Newton side. The third right, or second right to the surplus water, was assigned to the six paper mill privileges, for the use of the glazing machines then attached, or which might be thereafter attached, to said paper mills. No preference being given to either of these six privileges in this third right, they were to enjoy and share it equally.

Recurring then to the deed from Curtis and others to Dodd, we find, that with the said one paper mill privilege, there were conveyed all the rights, and none other, and subject, &c., as named in said agreement. Under this provision, the said deed conveyed to said Dodd an equal right, with the five other paper mill proprietors, to an equal share of the surplus water for glazing mills, or other machinery requiring equal power, after supplying the seven first powers and the saw mill then owned by Bemis & Hurd on the Newton side.

But the more material question arises upon the other clause of this deed, granting all the grantors’ rights and reservations, in their deed to Amos Lyon, of April 11th 1822. (See this clause, ante, 97, 98.)

It appears by the report, that upon this clause the plaintiff contended, that he acquired not only the one full first privilege for a paper mill, with an incidental right to the surplus water belonging to such privilege, but also so much more water as might be drawn in consequence of the right granted to widen and deepen the channel, although the same should reduce the amount of water appropriated to the two southern paper mills, belonging to the defendants, on the Newton side. But the court are of opinion, that this is not the true construction of the grant of those reservations and exceptions, and that the water power or privilege, granted in the former part of the deed to Dodd, is not enlarged by the special grant of the rights thus reserved.

It is manifest, from the whole tenor of the deed to Dodd, and of the previous deed of the same grantors to Amos Lyon, that they made a marked distinction between a grant of the land with which the water power was to be used, and the grant of the water power itself. This water power had been carefully defined, limited, and apportioned amongst all the proprietors, by the agreement of 1816, and this apportionment and distribution it was not the intention of the grantors, by either of these deeds, to alter or disturb.

Again ; in examining the localities, it is manifest that when they conveyed the land to Amos Lyon, with one full paper mill right, as defined, the land thus conveyed intervened between the bank of Charles River, above the dam, and other land of their own, adjoining the same bank of the river, lower down and below the dam ; that on this land, thus.still held by them, was a convenient site for mills, upon which a saw mill had formerly stood; and that there was an old channel, from a point on the bank of the river, above the dam, across the land con veyed to Amos Lyon, through which water had formerly been conveyed to the saw mill below. When, therefore, these grantors made their deed to Amos Lyon, owning, as they did, a valuable site for mills below the land conveyed, and owning other valuable water powers beyond that conveyed to Lyon which water powers could only be used and enjoyed by them upon the land mill site which they so owned, adjoining the river, below, by a canal across the land conveyed, the true purpose and the legal effect of their reservations and exceptions in that deed were to have a right, by way of easement, to a canal, not exceeding sixteen feet wide, and of any required depth. It is an obvious rule, in the construction of grants containing an exception or reservation, that the thing excepted or reserved must be out of the thing granted, or parcel of that which would have passed by the grant, if not thus excepted or reserved. An exception or reservation of something not embraced in the premises would be simply void; there being nothing for it to operate upon. The words exception and reservation are often used indiscriminately, though there is a known distinction between them. An exception is separating part of that embraced in the description, and already existing in specie; as excepting a particular parcel of land from a farm granted by general words A reservation is something newly created, out of the granted premises, by force and effect of the reservation itself, as an easement out of land granted, or rent out of land demised. In this case the words are peculiar, if they are truly copied ; they are, “ the said Curtis, &c., except the reserve to themselves,” &c. But such peculiarity of phraseology does not affect the sense, and, taking it according to the obvious meaning, it is equivalent to the words except and reserve ; meaning, by use of both terms, to secure themselves the right in question, which in its nature is an easement. But here was no exception or reservation out of the water power granted to Lyon, the grant of which was clear and distinct; indeed, that is not claimed. It could not be out of their own other water power, because none such was granted to Lyon by the deed containing such reservations; and therefore, had it been so in terms, it would have been void, as a reservation, because there was nothing for it to operate upon. It would have left the grantors in the same condition, in that respect, as if no such reservation had been made. If such a clause were inserted, excepting or reserving all their other water power, it must be considered as done ex majori cautela, to prevent doubt; but it would still be void — neither adding to, nor diminishing, the grantors’ such other water power. But here are no words purporting, by any construction, to except or reserve their own other water power. On the contrary, we think the reservation was clearly out of the land granted; to wit, a perpetual easement or servitude, over the land thus granted, to make and maintain a canal of the dimensions and depth specified, with the incidental right to make and maintain all necessary darns, sluices, and gates, for the purpose of carrying such water works as they might erect on their own land. The right of the grantors to take water from the river, above the dam, for their mills to be erected below the land granted to Amos Lyon, was not created, enlarged or affected, by this reservation; that right, if it existed at all, existed previously and independently, and was derived from their respective grants, modified and regulated by the agreement of 1816.

With this view of what these grantors had, by force of this reservation in their deed to Amos Lyon, we are to inquire what they intended by a grant to Dodd of all the rights, privileges, benefits and interest in and to the exceptions and reservations to themselves, in their deed to Lyon. This conveyance to Dodd was a conveyance in fee of all the land which remained to them, lying below the land formerly conveyed by them to Amos Lyon, with one full first paper mill privilege, with the incidental privilege to surplus water, as defined, expressed and limited by the agreement of 1816.

It is immaterial, perhaps, to this inquiry, whether the agreement of 1816 is in force or not between these parties, as a mutual covenant or mutual grant. The grantors referred to it as a significant mode of expressing and defining the right of water which they intended to convey, and thus carefully described this paper mill privilege, as entitled to all the rights and none other, and subject to all the reservations, &e., of said agreement. The grantees accepted the grant, as thus described, qualified, and limited ; and this principal and substantive grant of water power, to be used and enjoyed with the land conveyed, was limited, not by the dimensions of any aperture, gate, floom or canal, through which the water was to be drawn, but to a quantity sufficient to supply one paper mill with two engines, and the incidental right to surplus water, all as expressed in the agreement of 1816, in whatever mode or whatever place they might think fit to take it. Under this principal and substantive grant to Dodd, his heirs and assigns, they have a right to take and use the quantity of water thus ascertained, to and at any other mill, works, or machinery, at their pleasure, because such was the extent of a paper mill privilege, by the agreement.

The question then is, whether, by the subsequent clause in this deed, granting the rights under the exceptions and reservations in the deed to Amos Lyon, an additional water power was conveyed to Dodd and his assigns ; and the court are of opinion, that neither by any reasonable construction of the terms of this grant, as applied to the subject matter, nor any reasonable implication of the intent of the parties, can it be held that the water power was thus enlarged. By this subsequent clause, or third grant in their deed to Dodd and his assigns, the said Curtis and others did grant, assign, and convey to him, his heirs and assigns, all the rights, privilege, benefits, and interest in and to the exceptions and reservations which they excepted and reserved to themselves in their deed to Amos Lyon, which, for greater certainty, is recited in words at length. What, then, were the rights reserved to themselves by that exception ? Not any right of water power, for they held none by that reservation. If they had other water power, at the same dam, as they, or some of them, undoubtedly had, they might have granted it by apt words, to any extent to which they held it, even if it went to the destruction of their own other mills on the same dam. But no such additional right of water power was granted by this clause, because none such was reserved to themselves, by the exception and reservation in their deed to Lyon, and so does not come within the description.

But a most important and valuable right of the grantors did come within this description, and pass by this clause in their deed to Dodd and his assigns; namely, a right to make and maintain a canal through and across the land of Lyon, and his assigns, forever, with suitable dams, gates, and sluices, in order to convey water to the extent of the water power granted m and by the same deed, and any other water power which he then had or might acquire, provided the same should not exceed the quantity which would flow through a canal not exceeding sixteen feet in width, and as deep as might be required; and the further right to use and apply the water, so drawn through such canal, to any mills, works or machinery, which he might erect on the land conveyed by the same deed. This was the full measure of the rights reserved to themselves by the excep tions and reservations in their deed to Amos Lyon, and, there fore, was the full measure of the rights granted by this clause in their deed to Dodd. Such appears to us to be the natural and legal construction of this last grant, and there is nothing in the deeds together, to induce a belief that the parties had a different intent. The construction contended for by the plaintiff would involve the improbable supposition, that these grantors, after making one distinct grant of water power, carefully defined and limited, intended, by a subsequent clause, to grant an additional water power, to be taken out of their own privileges, and defined by no more certain limit than that of so much water as would flow through a canal sixteen feet wide, and of any required depth. This would be the more improbable, because every where else in this deed to Dodd, in the deed to Amos Lyon referred to, and the agreement of 1816, also referred to,' water powers are defined and described by the standard laid down in that agreement, and not by the dimensions of the canal through which the water runs. It is also improbable that they would make a grant, which would greatly impair, and perhaps nearly destroy, their other valuable privi leges, necessary to mills then in existence. It is true, that having such rights, they might grant them away; and if they had done so, they must bear the consequences, however onerous. But, in construing a grant, the court will not presume that they so intended, unless such intent is expressed in the terms of it, or may be reasonably implied from those terms and the subject matter.

It is not, however, upon the supposed extravagance of the plaintiff’s claims, or the improbability that the grantor could have intended such a construction, if the words of his grant were such as would warrant it, that we rest this construction ; but upon the ground that the words of description in the deed to Dodd, from whom the plaintiff claims, do not, by the natural import of the terms, or any reasonable implication, include the enlarged water power which he now claims.

2. Another question was, whether by the various grants, made part of the report, the fulling mill right was extinguished, or whether it had been acquired by the defendants.

The court are of opinion, that that right was not extinguished, but was acquired by the defendants, by the several deeds of John Ware to them of 1824 and 1830. It appears by the indenture of 1816, that John Ware was recognized as the owner of a fulling mill and carding machine, and a first privilege was assigned to him, upon equal grounds with the six paper mills, of water sufficient to carry such fulling mill and carding machine, or for other machinery requiring the same power. These rights, we think, were not inseparably annexed to any mills or buildings, or to any site at which they were then used, but might be used and enjoyed at any convenient site at which mills could be so placed as to take an equal quantity of water, and no more, from the same dam, and imposing no increased burden, by race-ways or otherwise, upon the other proprietors. The ground upon which it is claimed, on the part of the plaintiff, that this right was extinguished before his action was brought, was, that Ware had, in fact, conveyed away to the plaintiff, or those under whom he claims, the land across which the water was accustomed to flow to his fulling mill; and that as this was an artificial canal, and not a natural watercourse, the grantees of such land might have filled up the canal, and stopped the water from flowing to his mill: Also, that in point of fact, the fulling mill and carding machine have been discontinued.

In point of fact, we think it does appear from the case, that Ware did convey away the land over which the canal passed, which led to his fulling mill, without reservation. But it further appears, that notwithstanding he had thus conveyed the land over which the canal passed leading to his fulling mill, and that the grantees might have filled it up, yet in fact they did not do so, and he continued to use the water through said canal, as before, till several years after the making of the agreement by which the water power was assigned and distributed in 1816. The probability is, that this canal was kept open by these grantees, for their own use, in serving other mills. But if the grantees of that land had so filled up the canal, we are of opinion that his right to the use of the water, to carry his fulling mill and carding machine, or other machinery requiring equal power, did not depend upon taking the water through that canal, and that he might have obtained any other lands, by purchase or lease, over and through which the same quantity of iVater might have been drawn, for the same purpose; and that by filling up the canal, his water privilege would not have been extinguished.

We observe, for the purposes of argument, that his grantees of the land over which the canal was then open, by which his fulling mill was supplied, might have filled it up. But it is proper to suggest, that there might be a question, if it were material, whether, the grant being of land across which a canal then existed, being the only mode of supplying the grantors’ mill, and such mill open, visible, and in actual operation, a right would not have been reserved to the grantor, by implication, to have such canal kept open; but of this we give no opinion.

But further; this fulling mill privilege was expressly recognized and provided for, by the agreement of 1816, as a first privilege ; and the conveyance being made to Dodd, subject to all the provisions and reservations in that agreement, Dodd took his grant subject to that privilege. Such a privilege cannot be considered as extinguished or abandoned by disuse, until such disuse, entire and complete, has continued for the term of twenty years. It appears that Ware continued to use and occupy the mill, for several years after 1816 ; and he conveyed, by deed, the land and site of the fulling mill to the defendants, in 1824. This deed, however, not including in terms the water privilege, another was made from Ware to the defendants, in 1830, which conveyed the site of the fulling mill, and the water privilege, in full and ample terms. The right not being extinguished or abandoned at that date, supposing no conveyance of the privilege had before been made with the fulling mill site, we think this last deed was sufficient to pass the fulling mill privilege to the defendants, to be used for a fulling mill or for any other machinery, at their pleasure.