Essex Co. v. Gibson

• Decision Date: 06 October 1925
• Citation: 130 A. 846
• Parties: ESSEX CO. v. GIBSON et al.
• Court: New Hampshire Supreme Court

130 A. 846

ESSEX CO.

v. GIBSON et al.

Supreme Court of New Hampshire. Grafton.

Oct. 6, 1925.

[Copyrighted material omitted.]

Transferred from Superior Court, Grafton County; Sawyer, Judge.

Bill by the Essex Company against Martin H. Gibson and others." Decree rendered, and case transferred on exceptions. Decree modified.

Bill in equity for the ascertainment and enforcement of the rights of the parties in the use of the water of the Connecticut river at Monroe.

All of the property here involved was, on January 4, 1875, owned by one Barker and others, hereinafter referred to as Barker. It included a dam from which water was drawn for a large sawmill in Vermont, and for a gristmill in New Hampshire. On that date Barker conveyed the "gristmill" by warranty deed to Hadlock & Willey, predecessors in title to the defendants. After describing the mill lot, the deed defined the water rights conveyed as follows:

"Together with all the appurtenances and machinery in said mill and belonging thereto and the right to use sufficient water to run and carry three run of stones, corn cracker, and smutmill."

The deed further provided that:

"Said grantees are to keep and maintain the flume and rack of said gristmill in good repair, but the width of said flume and rack is not to be in any manner increased, and said grantees are also to be at their proper and equitable proportion of helping keep the dam in proper and sufficient repair, said proportion being about one-eighth."

At the date of the Barker deed the gristmill contained two runs of stones each 4 feet in diameter, one for grinding corn and provender, the other for grinding wheat. Each had the customary elevator, and the wheat run had the usual bolter and smutmill. These accessories required but little power. This machinery was driven by a single wheel of ancient type not less than 6 feet in diameter; It had a wooden shaft with wooden arms, to which were attached iron floats or buckets, and was impelled by the impact of the water. Whether these floats were encased within a rim, thereby classifying it as a tub wheel, or whether there was no rim, thereby classifying it as a flutter wheel, cannot now be determined. The flume leading from the bulkhead to the gristmill was an open structure, and at the bulkhead was 10 feet wide and 8 feet deep, inside measurements. As was customary in the construction of open flumes at that period, the end next the mill was somewhat deeper than art the bulkhead, but how much cannot now be determined.

New wheels of the flutter or tub types were not being installed in 1875. They were being supplanted by turbine wheels or more improved impact wheels, because of the greater efficiency of the latter. During August and September, 1875, following their acquisition of the property in January, Hadlock & Willey removed the old wheel and installed in its places four Buzzell wheels, one 20 inches in diameter, having an intake of 5 by 18 inches; two 30 inches, with intake 7 by 24 inches; and one 40 inches, with intake 10 by 30 inches. The Buzzell wheels, which were manufactured at St. Johnsbury, Vt., were then in common use in that vicinity, one of the five or six wheels then in the sawmill at this dam being of that make. Hadlock & Willey retained in the mill the two runs of stones and their accessories, and added another run of stones 54 inches in diameter for grinding provender, a middling purifier, and a corn cracker. This equipment constituted the customary equipment of gristmills of that character in similar communities doing a like business. Bach run of stones had its own wheel. The remaining wheel was used to run a corn cracker, and sometimes in the fall season, by permission of the other millowners on the dam, to run a cider mill. Power was transmitted from the shafts to run the accessories and also to operate the middlings purifier. The owners of the sawmill property knew of the changes in the wheels, and of the increased equipment put in the gristmill at the time they were installed, and did not object.

At the date of the Barker deed the flume, dam, and gristmill were all in need of extensive repairs. The flume was partially rebuilt in 1880. In 1884 the dam was extensively repaired and raised two feet by the Owners of the sawmill, to the expense of which the owner of the gristmill contributed one-eighth. The latter, at the same time, built, at his own expense, on the easterly side of the river, an extensive wing to the dam to retain the water impounded by the higher dam and to protect his mill. At the same time he also repaired the open top flume and bulkhead, which was some 3 to 4 feet higher than the original dam. At about the same time he substituted a steel grinder for the 54-inch stone. Otherwise there were no material changes in the premises or equipment between 1875 and 1888.

In 1888 the gristmill, which had been known as the Lyman mill, together with all its machinery, the easterly end of the dam, and nearly all the bulkhead and flume, was washed away. The mill was replaced the same year by a somewhat larger building known as the Granite State mill. This was equipped with four Burnham wheels, one 24 inches in diameter, two 30 inches, and one 36 inches, all set in an inclosed flume 7 feet S inches deep, and 6 feet 5 1/2 inches wide, inside measurements. Water was supplied to this flume by a round penstock, held in place by iron hoops 10 feet in diameter at the upper end and 6 1/2 feet at the lower end, the inside diameter of the penstock at its lower end being 6 feet.

Hadlock & Willey operated the Lyman mill for the period 1875 to 1880, grinding the grists for the neighborhood and also considerable western grain purchased by the carload. They customarily ran the mill 10 hours a day, except that when anchor ice and backwater reduced the head they ran the mill for a longer day, occasionally running it all night. During the haying season, and when going was poor in the springtime, custom grinding was slack, and the mill was then operated to a somewhat lesser extent. During these slack periods some of the spare time was utilized for the grinding of western grain. They were, however, ready to do custom grinding whenever it was brought in during mill hours. Such grinding was heaviest in the fall and winter. In 1880 Hadlock & Willey let the mill to one Tilton, who employed one McFarland as miller. On the expiration of Tilton's lease McFarland operated it as lessee until June 6, 1883, when he purchased Hadlock & Willey's interest, and thereafter operated it as owner until it was washed away in 1888.

McFarland built the Granite State mill, and operated it from the time of its completion in 1888 until April 18, 1912, when he sold it to the defendant Gibson, and at the latter's request conveyed it to the defendant Howe. The character of McFarland's use of both the Lyman mill and the Granite State mill and the hours he ran were practically the same as those of Hadlock & Willey in operating the former, and accorded with the customary hours of operating similar gristmills doing a like business in like communities during that period. The character of the use of both mills for the entire period from 1875 to 1912 was well known to the owners of the sawmill.

The findings and rulings of the court, to which the defendants' exceptions are more particularly directed, stated in an order convenient for consideration, are:

(1) Three runs of stones, a corn cracker, and smutmill such as were then [1875] commonly in use, could not be run by the wooden wheel which was in the mill at the date of the Barker deed. It is now utterly impossible to ascertain how much water the wooden wheel required to run it. No effort appears to have been made to determine that fact by either the grantor or grantee under the Barker deed, although the old wheel remained in operation for several months after the deed. Both grantor and grantee contemplated, at the time the deed was given, that this wheel would be removed, and more modern wheels installed in place thereof, for, without such change, the grantees could not avail themselves of the use of sufficient water to carry three runs of stones, a corn cracker, and a smutmill. There is no evidence that either party undertook to preserve any facts or data as to the old wooden wheel, its capacity, or the amount of water required to run it; and such failure, coupled with the installation of an entirely different type of wheel, and its long use by the owners of the gristmill without objection from the owners of the sawmill induces the belief that the grantor" and the grantee deemed such entirely immaterial to the determination of the grantees' rights under the Barker deed.

(2) The best and most equitable test available today to determine what was reasonably required to run and carry three runs of stones, a corn cracker, and smutmill, with the accessories common to such in 1875, under the head of water then existing at the dam in question, is afforded by what was required to run the four Buzzell wheels; and this was the test which the grantors and grantees under the Barker deed applied and accepted as a practical construction of the rights of the grantees and their successors thereunder, and is now adopted by the court.

(3) The Buzzell wheels as installed required, in the aggregate, 105.1 cubic feet of water per second to produce their maximum power.

(4) As to the time which the grantees under the Barker deed, and their successors can use said amount of water, the court finds the best and most equitable test to consist in the hours which it was customary then, and for many years before and after, to run similar gristmills doing a like business in the communities of the same class, which was 10 hours per day; and that this was the test which the grantors and grantees under that deed and their successors applied and accepted as to the element of time; and such is now adopted by the court.

(5) The defendants are entitled...