Hamilton Woolen Co. v. Moore

• Decision Date: 25 September 1885
• Citation: 25 F. 4
• Court: U.S. District Court — District of Connecticut
• Parties: HAMILTON WOOLEN CO. v. MOORE and others.

25 F. 4

HAMILTON WOOLEN CO. v. MOORE and others.

United States Circuit Court, D. Connecticut.

September 25, 1885

Alvan P. Hyde and A. J. Bartholomew, for plaintiff.

Mahlon R. West and Dwight Marcy, for defendants.

SHIPMAN J.

This is a bill in equity praying for the specific performance of a parol contract in regard to the right to flow water upon the mill privilege now owned by the defendants. The facts in the case are as follows:

The averments in the bill in regard to the citizenship of the parties are true. The allegations in paragraphs Nos. 1, 2 and 3 of the bill are true, except that the conveyance to the plaintiff by Albert E. Weld, mentioned in paragraph No. 2 was made on March 30, 1868, instead of soon after January 1 1865, as stated in said bill.

The plaintiff began to erect its reservoir dam on August 22 1865, and in November, 1865, decided to build it three feet higher than had been contemplated. Such a height would cause the water to flow back upon the hands of sundry owners in Connecticut, and would cause an overflow of about three feet upon the mill-wheel at the saw-mill of Albert Back, being the premises particularly described in paragraph No. 2. Before deciding to raise said dam to said additional height, Josiah Ballard, Jr., the treasurer of the plaintiff, and thereunto authorized, had an interview with said Back for the purpose of obtaining the right to overflow his mill site. Said Back agreed to sell to the plaintiff the right to flow his land and water-power for a fair compensation, to be determined after the water should come up to the height that the dam should raise it, and consented that the dam should be raised forthwith to the desired height. He stated that he did not wish to put any obstacles in the way of raising the dam, because the value of his mill-power depended largely upon the plaintiff's good-will, inasmuch as it might impose restrictions in the use of the water, and advised that the work of raising the dam should be proceeded with, and that the necessary authority should be obtained from the owners who would be injuriously affected.

The plaintiff, in November, 1865, in reliance upon this undertaking of said Back, proceeded to take the necessary steps to raise the dam, by making a broader earthwork base and heavier walls, and by making the proper fills in the causeways at a large expense. Subsequently, and in the month of November, 1865, and before the completion of the dam, said Ballard, as treasurer, and said Back made a definite parol agreement that said Back would sell the plaintiff the right to flow said three feet for the sum of $150 per foot, measuring from the top of the plank forming the bottom of the casing of the lower wheel at said privilege, and for the conveyance to him by the plaintiff of one-half of the privilege known as the 'Weld privilege.' It was agreed that papers should be drawn in accordance with this agreement. Subsequently a contract was drawn, but said Back declined to sign it, because he was not satisfied with the name of a referee in regard to land damages, a matter which is not now important, because there were and are no land damages to his land.

In a day or two after, and on or about November 28, 1865, said Ballard requested said Back to sign a bond, a copy of which marked 'Exhibit G' ^[1] is annexed hereto, and which had been prepared at said Ballard's instance. Said Back declined, ostensibly because it did not contain the actual parol agreement, the difference being that the number of feet to be flowed was not specified or limited in the bond. I think that the real reason why he made no effort to have the agreement carried into effect was because he desired to sell the entire property rather than sell the right of flowage. Said Ballard presented no other papers to said Back. Subsequently, and on or about December 20, 1865, at the request of said Ballard, said Back named $1,300 as the price for which he would sell the plaintiff his entire estate connected with said mill. Ballard declined to buy at that price.

On the evening of December 20, 1865, at the store of William M.

Corbin, said Back told said Corbin, Reed Tourtelotte, and Lyman Moore, son of Thomas Moore, that Mr. Ballard, in behalf of the plaintiff, had asked him his price for the saw-mill property, and that he had named $1,300.

On the next day said Corbin, said Tourtelotte, and said Thomas Moore bought said property of said Back for $1,300, which was its fair value; said Corbin and said Tourtelotte each owning an undivided fourth, and said Moore owning an undivided half thereof. Said Moore took one-half of his interest for the benefit of said Lyman Moore. Said...