Klaer v. Ridgway

• Decision Date: 06 May 1878
• Citation: 86 Pa. 529
• Parties: Klaer <I>versus</I> Ridgway.
• Court: Pennsylvania Supreme Court

86 Pa. 529

Klaer versus Ridgway.

Supreme Court of Pennsylvania.

April 1, 1878.

May 6, 1878.

April 1st 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas of Pike county: Of July Term 1877, No. 122.

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H. C. Jessup and C. W. Bull, for plaintiff in error.—It is a general rule of construction applicable to grants of water-powers, that when the question arises whether by a grant of sufficient water to propel a particular kind of machinery, the terms employed are used merely to indicate the quantity of water intended to be granted, or to restrict the use of the water to the machinery specified, the former construction is to be favored, when the language of the grant will admit of such construction. The grounds upon which this rule rests are twofold:- 1. It is more beneficial to the grantee without being more onerous to the grantor, that he should be permitted to apply the water to any machinery he pleases not requiring a greater amount of power than that specified in the grant.

2. It is supported by public policy. The interests of the community will generally be best promoted by allowing an unrestricted application of the power to such machinery as will be most profitable to the owner: Ashley v. Pease, 18 Pick. 268.

There is another rule of construction equally well settled. It is that in every grant, it being the act of the grantor, all doubtful expressions are to be taken in a sense most favorable to the grantee: Cromwell v. Selden, 3 N. Y. 256; Angell on Watercourses, 6th ed., § 149 a; Pratt v. Lamson, 2 Allen 281; Tourtellot v. Phelps, 4 Gray 374.

G. G. Waller and D. M. Van Auken, for defendants in error.— At the time Mott sold the spoke-mill he owned and retained the other two mills, and it would hardly be supposed that he would cripple and render comparatively useless either of them. What was his intention? There can be no room for doubt as to what was intended in the grant of the spoke-mill. Words of restriction could not be more clear and positive. "No use whatever shall be made of said water for any purpose which shall in any manner interfere with the grist-mill or the saw-mill." It was also limited to a six-horse power. But, says plaintiff's counsel, "This is obscure." The word grist-mill is used, and then grist-mill and saw-mill. If the parties did not mean to include the saw-mill, why insert it? It is there, put there by the parties and made a condition of the grant, and cannot be argued away. The grant distinctly limits the quantity of water to be used, but does not limit the kind of machinery. Klaer, by the change in his race, flume and wheel and by increasing the capacity of the spoke-mill, and necessitating a greater supply, creates low water, and then complains. In construing a deed, the court must look into the circumstances under which it was made, as evidencing the intention of the parties: Cox v. Freedley, 9 Casey 124.

Mr. Justice PAXSON delivered the opinion of the court, May 6th 1878.

The assignments of error from one to eight inclusive, raise substantially the same question and may be considered together. In each of them the complaint is that the court below erred in its construction of the deeds from John C. Mott to the plaintiff.

At the time of the execution and delivery of the deed of September 22d 1866, Mott was the owner of two mills, a grist-mill and a saw-mill. Prior to that date he had leased to the plaintiff a piece of ground for a spoke-factory. All of these mills were supplied with water from the Sawkill creek. On the day above mentioned Mott conveyed to the plaintiff the land previously leased to him for a spoke-factory, with the right "of using the water for the uses and purposes of the property hereby conveyed, equal to six horse-power, with the privilege to take the same from the race leading to the grist-mill of said Mott where it is now taken. And in case said race leading to the said grist-mill shall be abandoned, the said party of the second part shall have the right and privilege to take and use said water from the dug-race on the Dingman side of the Sawkill creek, at such point most convenient to the said party of the second part. Provided, however, that the grant of water as above described shall in no way interfere with the grist-mill of the party of the first part; but it is expressly understood that the said grist-mill is in all cases to be first supplied, and in case of low water the said grist-mill shall be entitled to the exclusive use of the water if necessary to drive said mill; and provided further, that no use whatever shall be made of said water by said party of the second part, his heirs, executors or administrators, for any purpose which shall in any manner interfere with the grist-mill or the saw-mill of the said parties of the first part. And it is further understood and agreed, that the said John C. Mott, his heirs, executors and...