Lamb Knitting Mach. Co. v. Chicopee Mfg. Co.

• Decision Date: 19 December 1930
• Citation: 174 N.E. 130,273 Mass. 506
• Parties: LAMB KNITTING MACH. CO. v. CHICOPEE MFG. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 506

174 N.E. 130

LAMB KNITTING MACH. CO.

v.CHICOPEE MFG. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Dec. 19, 1930.

Appeal from Superior Court, Hampden County; Greenhalge, Judge.

Suit by the Lamb Knitting Machine Company against the Chicopee Manufacturing Company. From an adverse decree, the plaintiff appeals.

Interlocutory decree affirmed, and final decree modified, and as so modified affirmed.

J. P. Kirby, of Springfield, for appellant.

B. E. Eames, of Boston, for appellee.

SANDERSON, J.

In this case the plaintiff has appealed from an interlocutory decree denying its motion to recommit the master's report, overruling exceptions thereto, and allowing the defendant's motion to confirm the report, and from a final decree. The bill was brought to restrain the defendant from preventing, hindering or obstructing the plaintiff in using the full quantity of water to which it claims to be entitled during twenty-four hours of each day and from further refusing or neglecting to provide, maintain and keep open a raceway or aperture under a canal.

The master appointed found that the plaintiff has conducted upon its premises the business of manufacturing continuously since its organization in 1900, using water power alone for a short time then installing steam, and thereafter operating by means of both kinds of power. The water is obtained from a canal owned and operated by the defendant and flows from this canal through a penstock of the plaintiff in which is a wheel whereby the power used is generated. The original defendant, the Chicopee Manufacturing Company, carried on a manufacturing business and for power used water conducted through a canal from the Chicopee River. In 1922 Chicopee Manufacturing Corporation, to which the original defendant had transferred its property and business, was added as a party defendant. It has carried on a business similar to that of its predecessor and used water from the canal in the same way. The original defendant will be referred to as the defendant unless otherwise indicated. The property upon which the mill of the plaintiff stands has been used for more than a hundred years for various kinds of manufacturing, but producing principally agricultural machinery and implements.

The first indenture with reference to the water rights in question was made in 1822. In it Benjamin Belcher conveyed to Jonathan Dwight certain tracts of land with the right which the grantor had to the use and privilege of the stream and water of the Chicopee River, excepting and reserving to himself, his heirs and assigns ‘the right of taking from the canal so much water as will pass through a gate or aperture of two feet in breadth and one foot in depth from the surface of the water, or a like quantity of water to be ascertained by calculation in case he shall elect to take the same at any other place than at the surface, said water to be taken against the land retainedby the said Benjamin, and at his expense, and for the sole use of a cupola and air furnace, and for no other use, and also the right of entering on the land hereby granted to fit a place for taking said water, and to lay a box or pipe or conductor, for the said water, and to repair the same at all reasonable times and in all reasonable ways. * * *’ The grantor for himself, his heirs and assigns, covenanted with the grantee that there should not be erected on the land retained ‘any other buildings except an air and cupola furnace, a Blacksmith Shop, a Coal House and a Wood House, and that there shall not be erected thereon any lathe for the manufacture of machinery or turning or cutting iron.’ The master found that the inference seemed warranted that both before and after this deed was made power was generated from the plant of Belcher by water passing through a fixed gate or aperture such as is described in the indenture and located at the surface of the water. Accordingly he concluded that the right relative thereto mentioned in the indenture was an exception rather than a reservation. The plaintiff is the successor in title of Belcher and to his rights and obligations in so far as not changed by later agreements or conduct. The Chicopee Manufacturing Corporation is the successor in title to Dwight, named in the indenture, in so far as its rights are not affected by subsequent agreements or conduct.

The indenture of 1822 was modified by one made in 1835 between the defendant, successor in title to Dwight, and Benjamin B., John W. and Bildad B. Belcher, successors in title to Benjamin Belcher, in which, after reciting that buildings had been erected on the land retained by Belcher in contravention of his covenant in the 1822 indenture, the defendant released the other parties to the agreement from all claims for damages which had accrued for breach of the covenant and also released them from the covenant in the future in so far as to permit them to continue the present buildings and to erect upon the retained land ‘any buildings for Mechanic Shop that they may see fit, excepting such as may be deemed extra hazardous and that they will in no way hinder them in so doing.’ In consideration of this agreement on the part of the defendant the Belchers granted to it, its successors and assigns a right to build a dam across the Chicopee River from the land retained by them to or towards the opposite side of the river; also, the right to build a penstock, flume or canal of not more than a stated width across the land retained at a designated place; and the free and uninterrupted right to the use of all the water which may run in that canal. And the defendant also agreed to indemnify the Belchers against any and all lawful claims for damages in consequence of the building of the dam or of the grant of the right to do so. The defendant in this indenture also engaged to secure the Belchers from ‘any or all damages or hinderances to their use of the water to which they are entitled from the canal, and at all times to maintain and keep open a sufficient raceway or aperture under said penstock, flume or canal to carry off or convey said water to which they are entitled through the same into the river.’

In 1852 the defendant and John W. Belcher entered into an agreement in which the former consented and agreed that Belcher might substitute a new penstock three feet in diameter in place of that by which water was then drawn from the canal, for the use of ‘the works at said Belcher's furnace,’ having the gate thereof so constructed as to regulate or limit the quantity of water to be drawn through the same according to the provisions therein contained. The defendant consented that Belcher and those enjoying his rights in the premises might draw water from the canal for the use of ‘said works' exceeding the quantity he was then entitled to draw according to the reservations and limitations in the indentures of 1822 and 1835 to the extent of the capacity of the penstock three feet in diameter, during the portions of the year when there was a surplus of water beyond what might be required for the operations of the defendant and a designated paper mill. Belcher agreed to limit the quantity which he and those occupying the premises would draw from the canal by means of the penstock to the quantity to which he had theretofore been entitled, except when there should be such surplus of water and, under certain specified conditions, in case of a deficiency that he would discontinue the use of the water so long as such deficiency should last. He also agreed so to change his raceway that the water used at his works would be discharged into the canal and that he would close up and discontinue his present waste course. It was also therein agreed that either party might terminate the arrangement by giving to the other six months' notice in writing of the intention so to do, ‘in which case each party shall be remitted to their former rights.’ The height of the original dam has been increased several times since 1822, and its location and construction have been altered. Since 1915 the average level of the water in the canal has been approximately twenty inches higher than before that year.

The master found that the words ‘mechanic shop’ in the agreement of 1835 are synonymous with machine shop; that a cupola or air furnace is a chimney for melting iron for the purpose of making it into castings and is a part of a foundry, and that during the entire period from 1822 there has been a cupola or air furnace operated on the premises now owned by the plaintiff which has been used in connection with the manufacturing businesses carried on; that water power has always been employed in connection with the operation of this contrivance, and also, independently of the cupola, for operating machinery to finish the castings; that the cupola or air furnace was used on the average only about three hours continually each day, seldom if ever more than six, but there were grindstones, snagging machines and tumbling barrels which finished or smoothed the castings and which were run by water power mornings, at which time the cupola was not in operation. The plaintiff and its predecessors in title have made use of this water power as they have had occasion to do so during the ordinary daylight hours between seven and six and occasionally at other times. Shortly before this suit was brought the defendant placed in its canal a cofferdam, in the form of a v-shaped contrivance extending from the bank about fifteen feet into the canal and so constructed as to allow the water for the plaintiff's use to pass through it. As originally built in the summer of 1907, an opening was cut in it two feet wide, extending about four feet down from the top of the structure, with a gate which could be raised and lowered so that its upper edge could be kept one foot below the surface of the water. The gate obstructed the opening below that point, and a flow of water was...