Jamison v. M'Credy

5 Watts & Serg. 129

• Court: Supreme Court of Pennsylvania
• Decided: March 15, 1843
• Status: Published

Opinion

The opinion of the Court was delivefed by

Rogers, J.

Samuel R. Wood and Bernard M’Credy were the owners of a property called the Norristown Mills, and about 12 acres of land, as tenants in common. The 30th of January 1826 they made partition of the lot. Before partition they cut a race or canal through the property, and in the deed of partition they marked out and established a boundary across the race; M’Credy taking the upper, and Wood the lower part. Wood’s interest was taken in execution and sold by the sheriff of Montgomery county to John Savage, and on his death the property was leased by his executors to Samuel Jamison, the plaintiff in error and the defendant below. Jamison also rented a steam mill in the neighbourhood, altogether distinct and separate from the premises divided by the partition. After notice by M’Credy to Jamison, the latter brought coal, in boats, by way of the canal to the landing on the canal, for the use of the steam mill; and the same was taken therefrom and used for that purpose.

Before discussing the main question I will notice a preliminary point. It is said that the plaintiff was not entitled to a verdict, because M’Credy himself used the canal for the same purposes to which it was applied by Jamison; that M’Credy unloaded lumber and everything he wanted there to supply the wants of his hands, although not living on the premises; that he supplied them by this means with coal, &c. Whether this amounts to a misuser of the grant we will not pretend to determine; for, admitting that it does, it is no defence in this suit, as one wrong cannot justify another wrong. The only purpose such evidence can serve, is to show the construction which each of the contracting parties put upon the deed, and in that view only is the argument entitled to respect. But it may be doubted whether, granting the facts to be as stated, it raises the same question as here; for the gravamen of the plaintiff’s complaint is the misuser of the grant, in this, that the defendant used the common property as a means of conveyance and a place of deposit, for a lot not connected with the premises, but detached therefrom, and from the connection which arises from the temporary occupation of a tenant under a lease of a moiety of the property from the owner. To that question only the judgment of the court applies; for it will be time enough to decide the points which have been incidentally mooted when they fairly arise.

The whole case turns on the construction of the deed of partition ; and this is a question of intention to be collected from the terms of the deed. The primary object the parties had in view in cutting the canal, it cannot be doubted, was for the use of the water-power ; neither to use more than one half on the lots. But in subserviency to this there wTas a secondary object; for as it was supposed the premises might be profitably employed in other ways, as by the erection of a furnace, steam mill or storehouse, a privilege is reserved whereby the owners, their heirs, tenants, &c. may erect such buildings on the premises, to which, of course, the canal would be appurtenant, with, nevertheless, the restriction that they are not allowed to carry on, or permit or sutler to be carried on, upon the same lots, the manufacture of gunpowder, or any part of the process of the manufacture of that article. The reason of the prohibition is very obvious, but beyond that there is nothing in the agreement to prevent the erection of any building whatever, of any sort or description, nor are parties restrained from carrying on any business on the premises which they may think proper. For all legitimate purposes within the contemplation of the parties, it was supposed the premises would afford abundance of accommodation, without inconvenience to either, or interfering in the slightest degree with their primary and original design in making the canal. It is, however, a different question, when it is attempted to pervert it from its original design and from a highway for the use of a common property to convert it into a canal common to all the property which either party might choose to purchase or even to lease in its immediate neighbourhood. If it may be used in the manner proposed, it may be used without stint or limit at the pleasure of any one or more of the tenants or occupiers for the whole borough of Norristown. If it is a right, it is a right without restriction, and, of course, susceptible of great abuse. This construction we cannot adopt, as we conceive it to be at war with the words as well as the general intention to be collected from the nature of the contract and the spirit of the agreement. The defendant contends there were two objects in view; 1. To use the canal or race as a passage for scows, boats and rafts; and 2. To use it as a race for water-power. It is a mistake to suppose the race to be an object; it was rather a means to effect an object; that is, to furnish them with a water-power, and to accommodate the owners, &c. with a cheap and convenient means of supplying whatever might be wanted or needful for the premises, of which they were originally the joint, and afterwards the separate owners. It cannot, with any propriety, be said to be a right personal to the owners; but it is annexed to the land, and runs with it. The inconvenience which would arise from holding it to be a personal privilege, is a strong argument against the defendants’ construction; for it is not easy to believe that such an intention entered into their minds at the time the canal was made, or subsequently, when it was divided between them. This case comes within the principle settled in Kirkham v. Sharp, (1 Whart. 334); it is an attempt to extend the use of the canal to objects not contemplated, and which do not fall within the orginal designs of the parties. Little light can be derived from particular expressions in the deed, for they must be construed in subserviency to the general intention, where that intention can be discovered from the whole instrument. The restriction by which neither party are permitted to use more than one half the water-power, applies to the water-power itself; a restriction obviously expedient and necessary, and which indeed would be a legitimate inference, without the aid of express words. So the regulation as to the size of the boats was introduced to prevent an abuse in that particular. The arguments drawn therefore from these clauses are entitled to little weight. The language of the deed is, that the same shall be and remain for the common use and privilege of. the said Samuel B. Wood and Bernard M’Credy, their respective heirs and assigns, owners, tenants and occupiers of their respective lots of ground through which the same canal or race passes, as a passage for scows, boats and rafts, and for the introduction of Schuylkill water for the use of their respective premises. We cannot admit that the last words of the sentence are confined to their immediate antecedent. It extends not only to the introduction of the Schuylkill water, but to all the purposes to which it may be put for the use of the premises. We perceive no intention by this clause to enlarge the grant. The construction of the defendants not only makes the canal an appurtenant to the property owned by them and M’Credy, but it substantially converts it into an appurtenance to a property which either party might thereafter purchase or 'lease; nay more, which the tenants might afterwards take on lease.

Judgment affirmed.