The Chancellor.
Upon the hearing of this motion, I came to the conclusion that the counsel for the complainants, and the officer who allowed the injunction in this case, were under a mistake as to the extent of the right in the water power-to which the corporation was entitled, under the deed of June, 1844. After a more full examination of the question, I see no cause to change the opinion I then expressed. It is true the bill charges that before, and at the time of, the execution of that [16]*16deed, the defendant alleged and pretended that.he.had sufficient water power to propel twenty runs of stones. But that was a mere matter of opinion, as to . the extent of the surplus waters of the, riyerFeyond.what should be wanted, for,the use of the state, and t.o propel two runs of millstones, under hj.s previous grant to -Forman. And the officers and agents of .the .company must he presumed.to have had the same meansthathe Fad of forming a correct opinion upon .that subject. For it is not . alleged, or pretended, that he concealed .any matter pf fact, within Fis knowledge, wljich was necessary to enable them to form a correct judgment as to the .probable extent of tlie surplus water pqwgr, after supplying the.stpte canal. From,the very nature of the pase, the extent of the water power belonging to the defendant, which both parties Imewwas ope half of.all.the surpluswaters of the upper level, except that previously granted to Forman, specified.in the complainants’ deed, was a matt" of mere conjecture or calculation. The officers or agepts of the company, therefore, instead of relying upon the defendant’s estimate of the prohpble amount pf surplus water which the river would afford, for the .future, should have made, their own calculations upon data which ;it was equally within .the power of ¡both parties to obtain. And if they were not convinced that there would be at all times water enough .to propel at least .eight runs of millstones, after satisfying the previous grant pf water power to Forman, they .should have contracted with the defendant for the exclusive right, to so much of fhe surplus water, belonging tp him, as would at all times be sufficient to propel fiye runs of flouring millstones, with the necessary machinery, ft is indeed stated, in the bill, that the defendant, by his deed, intended to grant to the company a sufficient power to propel five runs of millstones. But it is nqt alleged that he intended .to grant,an .exclusive power to that extent, eg apy exclusive p.Qw.er whatever, qr that either party supposed the agents pf the copapany were contracting for such an exclusive power. Op the contrary, the deed shows that both parties intended that the power for five rung of stones, granted to the company, should not b.e used to the exclusion of all right to the use of the water, by the defendant, [17]*17when there was only sufficient to propel five runs after satisfying the previous grant to Forman. F.or it appears by the deed itself, as well as by the complainants’ bill, that at the time of the-execution.of that deed, the defendant had a saw millwhicb was supplied with water power from the surplus water then belonging to him. And the grant of water power for five runs of stones, to the company, expressly declares that the water power, thus granted, is to be drawn, used, and enjoyed, upon an equality of right-with. three'other like runs of millstones, to be used by the defendant and his heirs and assigns. The only exclusive right, secured by the deed, is that the five run power granted to the company, and. the three run power reserved to the defendant and his assigns, to be used upon an equality of right therewith, are to have preference in the use of the water, over the remaining water power belonging to the defendant, beyond the eight run power. There is no pretence that there was any mistake in drawing the deed, or that it was not made in conformity with the bargain actually made by the parties. And it is hardly possible to use language more clear and explicit, to show the intention of the parties that the grantees were not to have the exclusive use of the "water, to the extent of a five run power, in case of a deficiency of water to propel eight runs, but that the defendant should have an equality of right, in reference to the three run power reserved to himself. . I am bound to presume, therefore, notwithstanding the allegations in the bill, as to the intention and representations of the defendant, that at the time of the execution of this deed, both parties contemplated that, by reason of drought or otherwise, the surplus waters on that side of the upper level might not be sufficient to propel the whole of an eight run power of machinery, beyond the amount required to satisfy the previous grant to Forman; and that the clause in .question, in this deed, was inserted by them for. the express purpose of restricting the grant .to the complainants, in the event contemplated, so as to give to. the defendant a light to participate in. nhe water power, notwithstanding, the grant of the five rim, powkr to the company.
The rights of the under that deed and the [18]*18previous grant to Forman, are as follows. The two run power, previously granted to Forman, must be first satisfied. And so far as the company has acquired that water power, its right to use it is exclusive of the defendant. While the complainants therefore, or the owner of the other two sixths thereof, are in the use of that two run power, the defendant is not at liberty to use' the water, or to suffer it to run to waste, so as in any way to interfere with, or impair, that right. After supplying that two run power, or so much thereof as the parties now owning it wish to use, according to their several rights therein, if there is not sufficient water on that side of the river, at the upper level, to propel eight runs of millstones, exclusive of the half of the surplus waters, or so much of that half as is actually used on the north side, the complainants and defendant are entitled to participate in such water equally, in the proportion of five parts to the former, and three parts to the latter. And in the estimate of the water power used by each, there must be included so much of the surplus water as is suffered to run to waste, by the negligence of the parties, respectively, or by their suffering the flumes, or other works which they are severally bound to repair, to be out of order.
Such being the rights of the parties, the bill shows that the defendant, at the time of the granting of the injunction, was using the surplus waters of the Seneca river, at the place in question, in a manner which was wholly inconsistent with the grant to the complainants, and the rights which such complainants had acquired under the previous grant from the defendant to Forman; and so as in a great measure to destroy the whole valúe of the use of the company’s property. For the bill distinctly charges, that the water power derived under the grant to Forman, and the grant of the five run power, directly from the defendant to the company, is all that is necessary to propel the whole of its machinery, and is more than sufficient for that purpose. It also charges that the defendant uses, for his saw mill, a water power sufficient to propel from seven to eight runs of flouring millstones, with their machinery, exclusive of the water which he suffers to run to waste by leakages in his flumes, [19]*19gates, and other structures; and that he runs his saw mill, a great part of the nine, both night and day.
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The Chancellor.
Upon the hearing of this motion, I came to the conclusion that the counsel for the complainants, and the officer who allowed the injunction in this case, were under a mistake as to the extent of the right in the water power-to which the corporation was entitled, under the deed of June, 1844. After a more full examination of the question, I see no cause to change the opinion I then expressed. It is true the bill charges that before, and at the time of, the execution of that [16]*16deed, the defendant alleged and pretended that.he.had sufficient water power to propel twenty runs of stones. But that was a mere matter of opinion, as to . the extent of the surplus waters of the, riyerFeyond.what should be wanted, for,the use of the state, and t.o propel two runs of millstones, under hj.s previous grant to -Forman. And the officers and agents of .the .company must he presumed.to have had the same meansthathe Fad of forming a correct opinion upon .that subject. For it is not . alleged, or pretended, that he concealed .any matter pf fact, within Fis knowledge, wljich was necessary to enable them to form a correct judgment as to the .probable extent of tlie surplus water pqwgr, after supplying the.stpte canal. From,the very nature of the pase, the extent of the water power belonging to the defendant, which both parties Imewwas ope half of.all.the surpluswaters of the upper level, except that previously granted to Forman, specified.in the complainants’ deed, was a matt" of mere conjecture or calculation. The officers or agepts of the company, therefore, instead of relying upon the defendant’s estimate of the prohpble amount pf surplus water which the river would afford, for the .future, should have made, their own calculations upon data which ;it was equally within .the power of ¡both parties to obtain. And if they were not convinced that there would be at all times water enough .to propel at least .eight runs of millstones, after satisfying the previous grant pf water power to Forman, they .should have contracted with the defendant for the exclusive right, to so much of fhe surplus water, belonging tp him, as would at all times be sufficient to propel fiye runs of flouring millstones, with the necessary machinery, ft is indeed stated, in the bill, that the defendant, by his deed, intended to grant to the company a sufficient power to propel five runs of millstones. But it is nqt alleged that he intended .to grant,an .exclusive power to that extent, eg apy exclusive p.Qw.er whatever, qr that either party supposed the agents pf the copapany were contracting for such an exclusive power. Op the contrary, the deed shows that both parties intended that the power for five rung of stones, granted to the company, should not b.e used to the exclusion of all right to the use of the water, by the defendant, [17]*17when there was only sufficient to propel five runs after satisfying the previous grant to Forman. F.or it appears by the deed itself, as well as by the complainants’ bill, that at the time of the-execution.of that deed, the defendant had a saw millwhicb was supplied with water power from the surplus water then belonging to him. And the grant of water power for five runs of stones, to the company, expressly declares that the water power, thus granted, is to be drawn, used, and enjoyed, upon an equality of right-with. three'other like runs of millstones, to be used by the defendant and his heirs and assigns. The only exclusive right, secured by the deed, is that the five run power granted to the company, and. the three run power reserved to the defendant and his assigns, to be used upon an equality of right therewith, are to have preference in the use of the water, over the remaining water power belonging to the defendant, beyond the eight run power. There is no pretence that there was any mistake in drawing the deed, or that it was not made in conformity with the bargain actually made by the parties. And it is hardly possible to use language more clear and explicit, to show the intention of the parties that the grantees were not to have the exclusive use of the "water, to the extent of a five run power, in case of a deficiency of water to propel eight runs, but that the defendant should have an equality of right, in reference to the three run power reserved to himself. . I am bound to presume, therefore, notwithstanding the allegations in the bill, as to the intention and representations of the defendant, that at the time of the execution of this deed, both parties contemplated that, by reason of drought or otherwise, the surplus waters on that side of the upper level might not be sufficient to propel the whole of an eight run power of machinery, beyond the amount required to satisfy the previous grant to Forman; and that the clause in .question, in this deed, was inserted by them for. the express purpose of restricting the grant .to the complainants, in the event contemplated, so as to give to. the defendant a light to participate in. nhe water power, notwithstanding, the grant of the five rim, powkr to the company.
The rights of the under that deed and the [18]*18previous grant to Forman, are as follows. The two run power, previously granted to Forman, must be first satisfied. And so far as the company has acquired that water power, its right to use it is exclusive of the defendant. While the complainants therefore, or the owner of the other two sixths thereof, are in the use of that two run power, the defendant is not at liberty to use' the water, or to suffer it to run to waste, so as in any way to interfere with, or impair, that right. After supplying that two run power, or so much thereof as the parties now owning it wish to use, according to their several rights therein, if there is not sufficient water on that side of the river, at the upper level, to propel eight runs of millstones, exclusive of the half of the surplus waters, or so much of that half as is actually used on the north side, the complainants and defendant are entitled to participate in such water equally, in the proportion of five parts to the former, and three parts to the latter. And in the estimate of the water power used by each, there must be included so much of the surplus water as is suffered to run to waste, by the negligence of the parties, respectively, or by their suffering the flumes, or other works which they are severally bound to repair, to be out of order.
Such being the rights of the parties, the bill shows that the defendant, at the time of the granting of the injunction, was using the surplus waters of the Seneca river, at the place in question, in a manner which was wholly inconsistent with the grant to the complainants, and the rights which such complainants had acquired under the previous grant from the defendant to Forman; and so as in a great measure to destroy the whole valúe of the use of the company’s property. For the bill distinctly charges, that the water power derived under the grant to Forman, and the grant of the five run power, directly from the defendant to the company, is all that is necessary to propel the whole of its machinery, and is more than sufficient for that purpose. It also charges that the defendant uses, for his saw mill, a water power sufficient to propel from seven to eight runs of flouring millstones, with their machinery, exclusive of the water which he suffers to run to waste by leakages in his flumes, [19]*19gates, and other structures; and that he runs his saw mill, a great part of the nine, both night and day. And the bill further states, that by this use and waste of the water, by the defendant, there is not sufficient water power left to the company to propel six and one-third run of stones; but on the ■contrary, for a large part of the time in dry seasons of the year, and in all seasons of drought, by such use and waste of the water, by the defendant, there is no water power left for the propelling of the machinery of the company, and at other times very little is left for that purpose, so that such machinery is frequently obliged to stand still for want of water. If these allegations in the bill are true, the defendant is guilty of a clear and substantial infringement of the rights of the complainants. For, in no event has the defendant the right to use more than a proportional part of a three run water power until the machinery of the company is fully supplied to the extent of a six and one-third run power. Nor has he the right, by running his saw mill in the night time, in dry seasons, so to draw down the surplus waters of the upper level as not to leave for the company its proper proportion of the water, in reference to the number of hours in the day that the water power is used by each. But neither party has any right to complain that the other, by running his machinery in the night, obtains the use of water which would otherwise have flowed over the dam and been wasted; provided the water in the pond is not thereby drawn down so as to impair its use during the ordinary hours of labor of the other party.
The objection of the defendant, that the complainants are not stated to be in the enjoyment of the right claimed, and that such right has not been established in a suit at law, is not well taken. Here the complainants claim under a recent conveyance from the defendant himself; and if the machinery of the company was now for the first time ready to be put in operation, by the use of the water power granted for that purpose by the defendant, there is no principle upon which the complainants should be required to bring a suit at law, for diverting the water, in violation of the express provisions of the grant, before applying to this court for relief. It is only where the right of the com[20]*20plainanito the privilege claimed admits of doubt, that the court requires him to establish his right at law previous to the granting of an .injunction. Here is.np fact to be tried at law,.to establish the right of the company to a participation in the use of the waters in.,question, in conformity with the terms of the grant from the defendant, except the simple fact of the due ex ecution.of the deed; as to which fact there is no question raised.
Ñor is the objection valid, that the, grant of the use of the water was upon condition .that it should be used in a particular manner, and that it does not appear it is so used by the complainant. The conveyance does indued recite, that the grantees intend to draw.and use the water power upon lands which.do not belong to. the grantoq and to discharge the same into the river under the canal, at a particular point below the dam. But that .particular manner of using the water power granted is not made a condition of the grant. And this, recital appears. only to. have been introduced ip. connection with the, further grant of the right to enter upon the. lands of the grantor, and construct and keep in repair a culvert .thereon for the discharge of the waters into the river, after they shall have been used by the grantees. If the company, therefore., can use the. water power granted, and discharge the waste water into the river at any other place, without crossing the lands of the de-, fendant, or interfering with the rights of the public or of individuals, I see nothing in the terms'of this conveyance, to. prevent the complainants from using the water power granted in that manner. The expression in the deed, that the water power intended by the grant is the right of drawing, using and occupying, and enjoying forever, for hydraulic purposes, sufficient of the waters.belonging to the defendant to propel five runs of. mill stones used.for flopring wheat,. with the.necessary m.a-, chinery,.by the most approved -wheels, evidently refers to the measure, or mode- of estimating the amount of water power, granted.. And it does not , require, as a condition of the grant, that such water power, shall be actually used and applied to. the propelling of the stones.and machinery of a flouring mill,: and by. a particular kind of wheels.. The grantor undoubtedly [21]*21knew the water* power purchased of him was intended to be used, not in a flouring mill, but in a manufactory of woollen goods; as the name of the corporation, to which the, conveyance was made, indicated. But as‘the quantity of water necessary to propel a run of stones, in a flouring mill, with the necessary machinery, with a given head of water, was a matter of easy calculation, that specification Ayas resorted to, by the parties, as the most certain and definite measure of the water power intended to be granted to this woollen manufacturing corporation, it may also be observed, that the same or similar language is used in this deed, to measure the quantity of Avater power Avhich the defendant reserved the right to use in common, or in equality of right, Avith the Avater power granted to the company; though the water power thus reserved to himself Ayas unquestionably intended, for the present at least, to be used for the purpose of propelling the machinery of his saw mill.
The injunction was therefore proper, so far as it restrained the defendant from using the Avater power, or suffering it to run to waste, to the prejudice of the complainants’ rights as before declared. And to that extent the injunction must be retained until the coming in of the answer. But the injunction, as granted, was much too broad. It must, therefore, be modified, if that has not already been done pursuant to the directions given at the close of the argument, so as to leave the defendant in the full enjoyment of his rateable proportion of the water power as above declared. '
And neither party is to have costs as against the other, upon this application.