Crouch v. Shepard

• Decision Date: 30 September 1867
• Citation: 44 Tenn. 383
• Parties: Crouch v. Shepard Shepard v. Crouch.
• Court: Tennessee Supreme Court

44 Tenn. 383

Crouch

v.Shepard

Shepard

v.Crouch.

Supreme Court of Tennessee.

September Term, 1867.

FROM WASHINGTON.

At the May Term, 1867, there was a decree pronounced in favor of the respondent; from which complainants appealed. Chancellor SETH J. W. LUCKEY, presiding.

JAMES BRITTON, TERRELL & INGERSOLL, LOGAN & LOGAN, for Complainant.

THOMAS A. R. NELSON and JAMES W. DEADERICK, for Respondent.

SHACKELFORD, J., delivered the opinion of the Court.

The complainants, Jesse A. Crouch, and son, were the owners of a small tract of land containing five acres, on Fall Branch, in Washington County, on which there was valuable water power, and on which they had erected a saw-mill and carding machine. On the 8th day of April, 1856, they sold this tract of land to the defendant, Shepard, and executed a deed after the giving of the boundaries. The deed recites, “with a full power to erect all necessary works for the purposes of carrying on any kind of machinery said Shepard may see fit to erect and build on the premises, together with all and singular, its appurtenances,” etc. After the usual covenants of warranty and seizin in the deed, is the following recitation: “It is understood, the said bargainors in the above conveyance, retain the right of a water lane running through the above premises, so as to receive the water as soon as the said James Shepard is done with it at his saw-mill, so as not to prove detrimental to the said Shepard; and the object of reserving said water, is to run other machinery below, and for no other purpose.”

The deed was duly acknowledged and registered. At the execution of the said deed, and contemporaneous with it, an agreement was entered into by which the complainants were to remove their carding-machine, and saw-mill within a specified time, so as to enable the said Shepard to build his mill; and he was to build a saw-mill costing about one thousand dollars. The complainants removed the mill and carding-machine within the time specified. Shepard built his saw-mill, but placed it upon the opposite bank of the creek from where the old mill stood. After the building of the mill by the defendant, Shepard, the complainant built on his lot below a carding-machine, to be run by water, and opened his water-lane through the lot conveyed. By placing the saw-mill on the opposite bank of the creek, the channel of water was turned, and not sufficient passed the wheel of the mill to propel the machinery of the complainant, and he constructed another lane, running into the original one, so as to gather the surplus water that passed over the dam, which originally passed on the south bank of the stream, at the old mill site. To do this, it became necessary to build a small dam below--which the complainant did--about eighteen inches or two feet high. After this was done the defendant, Shepard, removed it, and forbid the complainant to replace it, or use the second water-lane erected by him. Thereupon this bill was filed in which the complainant insists that he is entitled to use all the water of the stream after it passes the saw-mill of the defendant, and to have the use of this water he has the right to use all proper means to collect it, and the defendant having made it necessary, by building his mill on the opposite bank has so changed the current that it will not pass into the water-lane contemplated by the contract. An injunction was prayed for and obtained, restraining Shepard from disturbing his dam and use of the water.

The defendant, in his answer, sets out his deed, and insists, upon a proper construction of it, the complainant is only entitled to the water that passes over and under the wheel of his said mill, and that he is not entitled to the surplus water that runs over the dam; that he has been greatly damaged by the complainant, in making two water-lanes, and building a dam and flooding his wheel; that by the two lanes he is cut off from the use of his stables; he prayed for an account of the damage done by the complainant. The answer was filed as a cross-bill. It was agreed the original bill should be taken as answer to the cross-bill.

The weight of the proof is, by the building of the saw-mill of the defendant on the opposite side of the strean from the old site, the channel of the stream was changed, and a water-lane from the mill would not gather the surplus water that passes over the dam; that to gather the surplus water, the short water-lane made by the complainant was necessary, and to throw the water into this lane a dam of eighteen inches is requisite; that the erection of this lane obstructs the passway of the defendant to his stables; that the bridge made by the complainant over the water-lane is unsafe, and in erecting the dam the complainant dug up part of the soil of the defendant; that the water passing under or through the saw-mill was not sufficient to propel the machinery of the complainant.

The Chancellor was of opinion, that, by the terms of the deed and reservations, the complainant had the right only to run a simple water-lane so as to receive the water at the saw-mill so soon as the defendant was done with it, that is, to take the water immediately below the saw-mill wheel, but so as not to interfere with the sawing; that he had no right to take the water at two places, or by two water-lanes; that he had no right to the waste water...