The opinion of the court was delivered by
Swayzu, J.
The difficulties of construing the provisions of the grants are very considerable, and are increased by the different language in which the earliest grant by way of lease and release and the subsequent grants by way of deeds of bargain and sale are expressed. The view we have taken of the ease relieves us from a further difficulty which might be presented under conceivable circumstances by reason of the fact that the last lease contains no conditions at all. The question to be decided is whether by the terms of these instruments the water power company had the right to shut off the water from the plaintiff’s mill for a purpose foreign to the operations of the water power company itself. We find it convenient to deal first with the provisions of the lease. In substance the lease allowed the water power company thirty days for the purpose of making repairs in three different contingencies: First, if a breach should happen to the banks; second, if there should be a stoppage of water to be occasioned by widening, clearing out or repairing the canal; third, in case of a stoppage for thirty days in any one year for necessary purposes in the discretion of the water power company. The present case does not fall within either of these categories. The trial [677] judge allowed the jury to return a verdict only for such stoppage as was caused by the works of the city of Trenton under the contract with the defendants. The building of the drain by the city of Trenton was a contingency not covered by the lease. It was not a case where a breach happened to the banks, nor a case of a stoppage of water occasioned by widening. clearing out or repairing the canal, nor was it a stoppage of 'water for necessary purposes, for we think it quite clear that the necessary purposes referred to were such purposes as might be necessary to enable the water power company to carry out its contract to uphold, maintain and repair the canal or raceway, and that allowing the city to construct a drain was the volunta]y act of the water power company and not necessary. A further question arises under the provision of the lease which limits the amount of recovery in case there should be a deficiency of water to supply the lessee with the quantity thereby leased, and the deficiency should he caused or continued after notice through the willful neglect or misconduct of the lessor. It may, of course, be said that an entire stoppage of the water necessarily involves a deficiency, but we think that the words “deficiency of water’’ in the latter part of the lease are contrasted with the stoppage of water provided for in the clauses immediately preceding. The word “deficiency” naturally conveys the idea that some water is furnished, but not as much as should be, and when, as in this case, the deficiency is a deficiency of water to supply the lessees with the quantity leased, the argument is still stronger that the parties contemplated a case where the lessor did not fail wholly to supply water, but failed to supply the full quantity.
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The opinion of the court was delivered by
Swayzu, J.
The difficulties of construing the provisions of the grants are very considerable, and are increased by the different language in which the earliest grant by way of lease and release and the subsequent grants by way of deeds of bargain and sale are expressed. The view we have taken of the ease relieves us from a further difficulty which might be presented under conceivable circumstances by reason of the fact that the last lease contains no conditions at all. The question to be decided is whether by the terms of these instruments the water power company had the right to shut off the water from the plaintiff’s mill for a purpose foreign to the operations of the water power company itself. We find it convenient to deal first with the provisions of the lease. In substance the lease allowed the water power company thirty days for the purpose of making repairs in three different contingencies: First, if a breach should happen to the banks; second, if there should be a stoppage of water to be occasioned by widening, clearing out or repairing the canal; third, in case of a stoppage for thirty days in any one year for necessary purposes in the discretion of the water power company. The present case does not fall within either of these categories. The trial [677] judge allowed the jury to return a verdict only for such stoppage as was caused by the works of the city of Trenton under the contract with the defendants. The building of the drain by the city of Trenton was a contingency not covered by the lease. It was not a case where a breach happened to the banks, nor a case of a stoppage of water occasioned by widening. clearing out or repairing the canal, nor was it a stoppage of 'water for necessary purposes, for we think it quite clear that the necessary purposes referred to were such purposes as might be necessary to enable the water power company to carry out its contract to uphold, maintain and repair the canal or raceway, and that allowing the city to construct a drain was the volunta]y act of the water power company and not necessary. A further question arises under the provision of the lease which limits the amount of recovery in case there should be a deficiency of water to supply the lessee with the quantity thereby leased, and the deficiency should he caused or continued after notice through the willful neglect or misconduct of the lessor. It may, of course, be said that an entire stoppage of the water necessarily involves a deficiency, but we think that the words “deficiency of water’’ in the latter part of the lease are contrasted with the stoppage of water provided for in the clauses immediately preceding. The word “deficiency” naturally conveys the idea that some water is furnished, but not as much as should be, and when, as in this case, the deficiency is a deficiency of water to supply the lessees with the quantity leased, the argument is still stronger that the parties contemplated a case where the lessor did not fail wholly to supply water, but failed to supply the full quantity.
Another question is presented by the language of the condition in the deeds of bargain and sale. The language of that condition exempts the grantor from damage for any stoppage occasioned by any cause whatever, however long the stoppage may continue. We recognize the correctness of the rule of construction stated by Lord Wensleydale in the famous case of Grey v. Pearson, 6 H. L. Cas. 61 (at p. 106), cited in the brief for the defendant, that the grammatical and ordinary sense of the words is to be adhered to, but Lord Wensleydale [678] is careful to add: “Unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.” The words “any other cause whatever, however long said stoppage may continue,” if read literally, would exempt the water power company from liability in case they chose to sell the water to the city of Trenton for municipal purposes and divert it entirely from the purpose of furnishing power to the mills to whom the water was sold or leased. Thus construed the effect would be that the grant made for a valuable consideration would be only a grant during the will of the grantor, and would be repugnant, for the deed purports to convey an estate in fee-simple. If such were the proper construction it is difficult to explain why the same clause of the deeds should allow an action for damages in case the water power company undertook to enlarge or increase the capacity of the canal and took more time than thirty days in any one year for that purpose. In that case the company, by the terms of the lease, would be liable to an action for damages where the stoppage of 'water was due to its effort to enlarge and improve its canal, presumably for the benefit of all concerned, and would be exempt from an action for damages where it stopped the supply of water entirely. The Trenton Delaware Falls Company was originally incorporated for the purpose of creating-a water power at the city of Trenton, and it was authorized to build a dam in the Delaware river, to cut a raceway, with branch raceways and other works for tire purpose of creating and using the said water power for mills, manufacturing and no other purpose. Pamph. L. 1831, p. 131. Its successor, the Trenton Water Power Company, was incorporated to hold the same works, franchises and real estate in the same manner as the original stockholders. Pamph. L. 1844, p. 85. The construction contended for, if the words are read in their most general and unqualified sense, would enable the defendant to escape liability for an abandonment of the very purpose for which it was chartered. Such a construction is, in the words of Lord [679] Wensleydale, “absurd, repugnant and inconsistent with the rest of the instrument.” We are under no necessity of adopting that construction. We think that a reading of the entire deed in the light of the charter of the water power company and of the provisions by which it agreed to uphold, maintain and repair the canal or raceway, demonstrates that the words were used in a more restricted sense. They are coupled with words exempting the company from liability for damages for a stoppage occasioned by repairs, improvements, breaks, floods and drought. All of these causes, except the improvements, are causes beyond the control of the company, and the parties evidently had in mind that there might be other causes beyond the control of the company for which they ought to provide necessary purposes in the words of the case, and for such causes it was natural and proper that they should agree that the company should be exempt from liability for damage. When they came to the question of a stoppage due to improvements, enlarging or increasing the capacity of the canal, they recognized that such a stoppage was within the control of the water power company, and that, in that case, it would be proper to allow damages in case the company took an unreasonable time to enlarge or increase the capacity of the canal; this explains the provision which allows them, in such a case, only thirty days in a year, when, for other causes, they were exempt from liability however long the stoppage might continue. In short, we think the meaning of the words in question would be more accurately expressed if the instrument read: “Nor for any other cause whatever beyond the control of the water power company, however long the stoppage might continue.” The case differs from that of Middlesex Water Co. v. Knappmann-Whiting Co., 35 Vroom 240. In that case the water company had made an absolute agreement to supply water, and it was held by this court that there could not be imported into that agreement an exemption from liability where the company was prevented from fulfilling its contract by an unforeseen accident. In the present case the water company has undertaken to exempt itself from liability in certain cases, and the contention is that the language is [680] Fitch as to exempt it absolutely-whatever the cause may be. We think such a construction of the exemption is destructive of the conveyance itself. The case differs also from the case in the Supreme Court of Buchanan & Smock Lumber Co. v. East Jersey Coast Water Co., 42 Id. 350. That was a case of a mere contract to supply water for fire protection, and the contract provided that the company should not be liable for a deficiency or failure in the supply occasioned by any cause whatsoever. The contract there was for an intermittent supply which might or might not be required. There was nothing absurd or repugnant or inconsistent in the construction there adopted. The present case is a ease of a grant in fee of so much water, intended as a continuous supply for the purpose of furnishing power to a mill, and the construction contended for would destroy the grant instead of merely exempting the defendant from liability. The difference between the' two cases is analogous to the difference between an agreement to supply all the crops of a farm, with an exemption from liability in case of a failure of crops from any cause whatever, and a grant of the land itself with a provision that the grantor might prevent the grantee from occupying it at any time he chose.
The counsel for the plaintiff in error seems to have seen the difficulty into which the broad construction for which he contends would lead him, for he urges that the limitation of liability is a limitation only for thirty days in any one .year, but the deeds do not couple the provisions as to thirty days with any cause except: a stoppage caused by enlarging or increasing the capacity of the canal or making new additions thereto. Y\ hen the stoppage is for any other cause the defendant is exempt, from liability, however long the stoppage may continue. The evidence in the case showed that the time occupied lor repairs was less than the time during which the water was shut off, and we think the trial judge was quite right in allowing the plaintiff to recover for the damages suffered during the period when the water was shut off and repairs were not being made. We find no error in the record, and the judgment is therefore affirmed, with costs.
[681] For affirmance—The Chief Justice, Garrison, Swayze, Reed, Trexciiard, Parker, Bergen, Yooriiees, Minturn, BogeRT, YredeNburgii, Vp.ooM, (Bevy, Dill, J.J. 11.
For reversal—Nolle.