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The first question to be determined arises upon the construction and effect of the deed of 1802; and for that purpose the deed and agreement, being cotemporaneous instruments relating to the same matter, are to be read and considered together.
On this point I concur entirely in the opinion delivered in the court below, that by the language used by these parties, they intended to specify the quantity of water granted, and the quantity retained or reserved, and not to limit the mode or purpose for which the part granted or reserved should be used. A strict adherence to the letter of the instruments might, perhaps, lead to a different conclusion with respect to the rights of both parties. The agreement recites that the conveyance was made "for the purpose of building an oil mill," and the race was to be widened so as to be "sufficient to carry said oil mill;" and the agreement in the body of the deed was that the grantees should have the privilege of the water that was not wanted for the forge and two blacksmith's bellows. But a construction which would limit the use of the water to the purposes alluded to in these instruments would be not only against public policy but against the manifest interest of the parties. A bargain of that kind would be greatly to the disadvantage of both, and it cannot therefore be seriously believed that either party intended to bind himself or the other to the use of the right granted, or the right reserved, for any single specified purpose. The case ofCromwell v. Selden (3 Comst., 253) is very much like that now under consideration, and confirms the construction given to the deed now in question in the court below. It is unnecessary to refer to cases beyond that and the cases there cited.
The acts of the parties are entirely in conformity with this construction. Wales, the grantor, converted his forge into a paper mill in 1806 or 1807, and the water reserved in the deed of 1802 has been used for the purpose of propelling the paper mill for nearly or quite forty years, without question or objection on the part of the owners under the grant of 1802. The uniformity with which the plaintiff's right to a preference in the use of the water for that purpose was asserted on his part, and acquiesced in by the
owner of the oil mill, proves that it has been used under a claim of right. This long acquiescence may be properly regarded as a practical construction of the conveyance settled between the parties themselves, by which the right of the complainants to use the water for the purpose of driving the paper mill is established.
But in regard to the point on which the case turned in the court below, I am compelled to differ in opinion from that court. The bill was there dismissed on the ground that the court of chancery had not concurrent jurisdiction with a court of law in a case like the present, and that no relief in equity could be granted until the right had been first settled at law. The right of the plaintiffs to use the quantity of water specified in the deed of 1802, for the purpose of driving their paper mill, is entirely clear, especially when connected with the long and uninterrupted use of it for that purpose. The defendants have stated no fact in their answer to put the complainants' right in doubt. The only real difficulty between the parties, after settling the construction of the deed of 1802, arises from the want of some satisfactory mode of determining, not only for the present but the future, what quantity of water the parties are respectively entitled to, and to fix it by actual measurement. As long as this is left undone, the parties will be in continual controversy.
The jurisdiction of the court of chancery in cases of this description is well established. The question here is not whether a preliminary injunction ought to have been granted, but whether a court of equity has power of granting relief. This question was determined in favor of the jurisdiction of a court of equity in the case of Gardner v. The Trustees of Newburgh (2 John. Ch.R., 162), and in the case of Belknap v. Trimble (3 Paige,
577, 585, 600). It is true that in the case of Reid v.Gifford (6 John. Ch. R., 19), a preliminary injunction was refused on a bill for relief against the diversion of water from the mills of the complainant; but the case
cannot be understood as overruling the doctrine on which the same learned chancellor ruled in Gardner v. Newburgh, and if it were to be so regarded, the authority of the case last mentioned is reaffirmed by the decision in Belknap v. Trimble. (Seealso 2 Story's Eq., § 927.)
The construction of the instruments in writing under which the parties respectively claim title may as well be declared in the one court as in the other; and especially where, as in this state, the remedy at law and the remedy in equity are administered in the same court and by the same judges. The mode in which justice is administered in a court of equity is much better adapted to the speedy and final settlement of the present controversy than the forms of a suit at law. It can be done in equity in a single suit. The litigation might continue through a great number of actions at law. The remedy in equity is preventive as well as remedial. The remedy at law is not so. The parties may have or might have had an issue to be tried by a jury if desirable. But the principal questions to be submitted to a jury in the present case relate to the quantity of water granted by the deed of 1802, and the quantity retained by the grantor; and whether the defendants have taken and diverted from the plaintiff's paper mill more than they were entitled to.
The learned judge who delivered the opinion in the court below observed, "if we should attempt to ascertain the quantity of water to which the plaintiffs are entitled, the evidence is so conflicting that we should necessarily be left to conjecture." This is undoubtedly true, and a jury in a court of law or on an issue in chancery would have the same or greater difficulty. In an action at law to recover damages for a wrongful diversion of the water, the jury would have to inquire, first, how much water was wanted for the old forge and two blacksmith's bellows; and secondly, whether the defendants diverted the water so as not to leave that quantity. These might involve incidentally other inquiries as to the
relative quantities wanted for the old forge and for the plaintiff's paper mill; as to the condition of the creek as to fullness; as to the state of the dam and race, and as to the condition of paper mills in respect to their machinery, and to the waste of water. Sometimes the result of a suit at law might depend upon a fact not involving the disputed right between the parties, and sometimes it would be impossible to ascertain the grounds on which the verdict was found. Every juror would probably have the same difficulty in understanding and reconciling the evidence, which was felt in the court below and which is fully appreciated here. The verdict of a jury, finding that too much water was diverted at one time, would be no guide to another jury in determining whether too much was diverted at another time.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The first question to be determined arises upon the construction and effect of the deed of 1802; and for that purpose the deed and agreement, being cotemporaneous instruments relating to the same matter, are to be read and considered together.
On this point I concur entirely in the opinion delivered in the court below, that by the language used by these parties, they intended to specify the quantity of water granted, and the quantity retained or reserved, and not to limit the mode or purpose for which the part granted or reserved should be used. A strict adherence to the letter of the instruments might, perhaps, lead to a different conclusion with respect to the rights of both parties. The agreement recites that the conveyance was made "for the purpose of building an oil mill," and the race was to be widened so as to be "sufficient to carry said oil mill;" and the agreement in the body of the deed was that the grantees should have the privilege of the water that was not wanted for the forge and two blacksmith's bellows. But a construction which would limit the use of the water to the purposes alluded to in these instruments would be not only against public policy but against the manifest interest of the parties. A bargain of that kind would be greatly to the disadvantage of both, and it cannot therefore be seriously believed that either party intended to bind himself or the other to the use of the right granted, or the right reserved, for any single specified purpose. The case ofCromwell v. Selden (3 Comst., 253) is very much like that now under consideration, and confirms the construction given to the deed now in question in the court below. It is unnecessary to refer to cases beyond that and the cases there cited.
The acts of the parties are entirely in conformity with this construction. Wales, the grantor, converted his forge into a paper mill in 1806 or 1807, and the water reserved in the deed of 1802 has been used for the purpose of propelling the paper mill for nearly or quite forty years, without question or objection on the part of the owners under the grant of 1802. The uniformity with which the plaintiff's right to a preference in the use of the water for that purpose was asserted on his part, and acquiesced in by the
owner of the oil mill, proves that it has been used under a claim of right. This long acquiescence may be properly regarded as a practical construction of the conveyance settled between the parties themselves, by which the right of the complainants to use the water for the purpose of driving the paper mill is established.
But in regard to the point on which the case turned in the court below, I am compelled to differ in opinion from that court. The bill was there dismissed on the ground that the court of chancery had not concurrent jurisdiction with a court of law in a case like the present, and that no relief in equity could be granted until the right had been first settled at law. The right of the plaintiffs to use the quantity of water specified in the deed of 1802, for the purpose of driving their paper mill, is entirely clear, especially when connected with the long and uninterrupted use of it for that purpose. The defendants have stated no fact in their answer to put the complainants' right in doubt. The only real difficulty between the parties, after settling the construction of the deed of 1802, arises from the want of some satisfactory mode of determining, not only for the present but the future, what quantity of water the parties are respectively entitled to, and to fix it by actual measurement. As long as this is left undone, the parties will be in continual controversy.
The jurisdiction of the court of chancery in cases of this description is well established. The question here is not whether a preliminary injunction ought to have been granted, but whether a court of equity has power of granting relief. This question was determined in favor of the jurisdiction of a court of equity in the case of Gardner v. The Trustees of Newburgh (2 John. Ch.R., 162), and in the case of Belknap v. Trimble (3 Paige,
577, 585, 600). It is true that in the case of Reid v.Gifford (6 John. Ch. R., 19), a preliminary injunction was refused on a bill for relief against the diversion of water from the mills of the complainant; but the case
cannot be understood as overruling the doctrine on which the same learned chancellor ruled in Gardner v. Newburgh, and if it were to be so regarded, the authority of the case last mentioned is reaffirmed by the decision in Belknap v. Trimble. (Seealso 2 Story's Eq., § 927.)
The construction of the instruments in writing under which the parties respectively claim title may as well be declared in the one court as in the other; and especially where, as in this state, the remedy at law and the remedy in equity are administered in the same court and by the same judges. The mode in which justice is administered in a court of equity is much better adapted to the speedy and final settlement of the present controversy than the forms of a suit at law. It can be done in equity in a single suit. The litigation might continue through a great number of actions at law. The remedy in equity is preventive as well as remedial. The remedy at law is not so. The parties may have or might have had an issue to be tried by a jury if desirable. But the principal questions to be submitted to a jury in the present case relate to the quantity of water granted by the deed of 1802, and the quantity retained by the grantor; and whether the defendants have taken and diverted from the plaintiff's paper mill more than they were entitled to.
The learned judge who delivered the opinion in the court below observed, "if we should attempt to ascertain the quantity of water to which the plaintiffs are entitled, the evidence is so conflicting that we should necessarily be left to conjecture." This is undoubtedly true, and a jury in a court of law or on an issue in chancery would have the same or greater difficulty. In an action at law to recover damages for a wrongful diversion of the water, the jury would have to inquire, first, how much water was wanted for the old forge and two blacksmith's bellows; and secondly, whether the defendants diverted the water so as not to leave that quantity. These might involve incidentally other inquiries as to the
relative quantities wanted for the old forge and for the plaintiff's paper mill; as to the condition of the creek as to fullness; as to the state of the dam and race, and as to the condition of paper mills in respect to their machinery, and to the waste of water. Sometimes the result of a suit at law might depend upon a fact not involving the disputed right between the parties, and sometimes it would be impossible to ascertain the grounds on which the verdict was found. Every juror would probably have the same difficulty in understanding and reconciling the evidence, which was felt in the court below and which is fully appreciated here. The verdict of a jury, finding that too much water was diverted at one time, would be no guide to another jury in determining whether too much was diverted at another time. So that if the parties are left to their remedy at law, they are left to endless, expensive, unsatisfactory and useless litigation.
The true and proper remedy was in the court of chancery, and the mode by which the controversy can be determined with the least expense, and the greatest certainty of doing justice, is by a reference to one or more suitable referees; one of whom should be a capable engineer or millwright. Such a referee can learn more of the true merits of the case in a day, upon an actual view and examination of the mills and premises, than a jury or court can ever learn from hearing or reading the testimony of witnesses. This observation may not be true in regard to the question how much water was wanted for the old forge, but it is undoubtedly true of various other material facts in regard to which the witnesses have testified. And after such a view the testimony already given can be far better understood and appreciated than by a jury or a court without a view. If it should be found impossible to ascertain with certainty the quantity of water reserved by the deed of 1802 as water wanted for the old forge, resort may then be had, for the purpose of settling that question, to the quantity used by the plaintiffs and their predecessors for a paper mill, for a long period of time, under
a claim of right and by the acquiescence of the defendants or those under whom they claim.
This course of proceeding by a reference and view has another advantage over an action at law. It enables the court to exercise its power of preventing future litigation. Power may be given to the referee to prescribe and establish, under the direction of the court, some fixed mechanical gauge by which the quantity of water to which the plaintiffs are entitled may be kept within the main race, and not drawn off into the defendants' side race. This has frequently been done in cases of this description; and where parties cannot otherwise agree, and are disposed to be litigious, it is perhaps the only mode of preventing continual irritation and litigation between them.
I think the supreme court erred in dismissing the complainants' bill for the want of jurisdiction in chancery. I have suggested the course proper to be pursued in the supreme court when the case shall have been sent back; leaving it, however, to that court to take such course for the determination of the controversy as may upon the application of the parties, or in the discretion of the court, be deemed most apt to lead to a speedy and proper conclusion of the controversy.