Moore v. Railway Company

• Decision Date: 12 January 1933
• Citation: 159 Va. 703
• Parties: WARNER MOORE, SURVIVING PARTNER, ETC., OF WARNER MOORE AND COMPANY v. THE CHESAPEAKE AND OHIO RAILWAY COMPANY.
• Court: Virginia Supreme Court

Page 703

159 Va. 703

WARNER MOORE, SURVIVING PARTNER, ETC., OF WARNER MOORE AND COMPANY v. THE CHESAPEAKE AND OHIO RAILWAY COMPANY.

Supreme Court of Virginia, Richmond.

January 12, 1933.

Present, Campbell, C.J., and Holt, Epes, Gregory and Chinn, JJ.

1. WATERS AND WATERCOURSES — Grants of Water — Construction of Grants — Grants of Inches, Square Inches and Cubic Inches — Case at Bar. — The instant case was a controversy between a mill owner and the owner of a canal. The water power conveyed in the grants to the mill owner's predecessors in title by the predecessors in title of the owner of the canal was expressed in terms of inches, square inches and cubic inches. The main controversy centered around the extent of water or power which the grants conferred, expressed in such terms. A great deal of evidence was introduced on this point. The meaning of the terms "inches," "square inches" and "cubic inches," as used in the grants, was one of the important considerations in the case. Appellant, the mill owner, claimed that those terms, at the time the grants were made, had no definite meaning; that the language was not plain and unambiguous, and that the grants should be construed in the light of the surrounding facts and circumstances then existing and in the light of the practical construction placed upon them by the parties. On the other hand, the appellee contended that the grants were plain and definite in meaning. Appellee claimed that the terms "inches," "square inches" and "cubic inches" had a definite and fixed meaning and meant "square inches," not "inches," or "cubic inches," as specified, and that they were aperture or orifice grants. Appellant contended that he was entitled under the grants to a sufficient supply of water to operate the mill.

Held: That appellant's contention was the correct one; that the terms "inches," "square inches" and "cubic inches," as used in the grants, had at the time no well-defined meaning.

2. WATERS AND WATERCOURSES — Grants of Water — Construction of Grants — Aperture Grants — Case at Bar. — The instant case was a controversy between a mill owner and the owner of a canal. The water power conveyed in the grants to the mill owner's predecessors in title by the predecessors in title of the owner of the canal was expressed in terms of inches, square inches and cubic inches. A deed granting the water granted it in square inches, but made no provision for any aperture or orifice. There was abundant evidence, showing clearly that the canal owners were familiar with apertures.

Held: That if the canal company had intended the deed to be an aperture grant it would have expressly so provided.

3. CONTRACTS — Construction — Intention of the Parties. — It is a well known principle in the construction of contracts that the object of the court is to discover and give effect to the intention of the parties, and to ascertain this intention courts look to the language employed and the subject matter and the surrounding circumstances.

4. DEEDS — Construction — Construed Against Grantor. — A deed is construed most strongly against the grantor and in favor of the grantee.

5. CONTRACTS — Construction — Practical Construction. — In the construction of contracts in which obscurity exists, great weight is given by the courts to the acts of the parties done under the contracts, as an indication of their intention. This is known as the rule of practical construction.

6. CONTRACTS — Construction — Practical Construction — Grant of Water Power — Case at Bar. — The instant case was a controversy between a mill owner and the owner of a canal. The water power conveyed in the grants to the mill owner's predecessors in title by the predecessors in title of the owner of the canal was expressed in terms of inches, square inches and cubic inches. The main controversy centered around the extent of water or power which the grants conferred, expressed in such terms. Appellant, the mill owner, contended that he was entitled under the grants to a sufficient supply of water to operate the mill. Appellee, the canal owner, contended that 83.8 cubic feet per second was all the water to which the mill owner was entitled under the grants.

Held: That appellee by its conduct in accepting compensation for the water without protest and with full knowledge of the claimed excess use, abandoned its original construction and accepted that placed upon the grants by the appellant.

7. WATERS AND WATERCOURSES — Grants of Water — Construction of Grants — Grants of Inches, Square Inches and Cubic Inches — Aperture Grants — Case at Bar. — The instant case was a controversy between a mill owner and the owner of a canal. The water power conveyed in the grants to the mill owner's predecessors in title by the predecessors in title of the owner of the canal was expressed in terms of inches, square inches and cubic inches. The main controversy centered around the extent of water or power which the grants conferred, expressed in such terms. Appellant contended that he was entitled under the grants to a sufficient supply of water to operate the mill. Appellee claimed that the terms "inches," "square inches" and "cubic inches" had a definite and fixed meaning and meant "square inches" not "inches," or "cubic inches," as specified, and that they were aperture or orifice grants, and that 83.8 cubic feet per second was all the water to which the mill owner was entitled under the grants. The Supreme Court of Appeals concluded that "square inches of water" and other terms in inches, used in the grants by the parties, cannot be construed as aperture or orifice grants; that the grants must be construed in the light of the surrounding facts and circumstances, and the practical construction placed thereon by the parties, and when so construed, it is evident that the meaning of the parties to the grants was that the mill should be furnished sufficient water to operate it as "then constructed"; that such quantity of water was fixed and established as 173 cubic feet per second; that there was no material enlargement of the mill, which would require any substantial increase in the water supply; that sufficient water to operate the mill had not been supplied by the appellee since prior to its closing; that the cause of the inadequate supply was the obliteration of the basin or pond and the obstructions placed in the canal, for which appellee was responsible.

8. SPECIFIC PERFORMANCE — Grant of Water Power — Definiteness of Grant — Case at Bar. — The instant case was a suit by a mill owner, appellant, against the owner of a canal, appellee, for specific performance of a contract granting water power to operate a mill. The appellee contended that the instant case was not one in which specific performance should be decreed, because if appellant's construction of the grants was accepted then the grants are not certain and definite in their terms. The answer to this contention is that the grants sought to be specifically enforced, if originally indefinite, are not now indefinite and have not been since the rights of the parties were settled by their own construction of them.

Held: That the record presented a case for specific performance.

9. LIMITATION OF ACTIONS — Grant of Water Rights — Five-Year Statute of Limitations — Case at Bar. — The instant case was a controversy between a mill owner, appellant, and the owner of a canal, appellee. The suit rested on grants by deed of water power by the predecessors in title of appellee to appellant's predecessor, creating obligations on the appellee and its predecessors which are to be performed every year, day and hour, and do not end. The violation of obligation here complained of — there being no question of abandonment, estoppel, or adversary claim, even if there could be the latter — is as fresh and in date and open to redress by court action today as in 1918 or 1923, or when this suit was brought. The acts alleged and proved to which the violation of obligation is traced — obstructions in the canal and the filling up of the basin, with the resultant loss and impairment of the requirements and conditions of water power supply — are not to be regarded in themselves as separate and distinct injuries of a tort or nuisance character, independently of the contractual obligation existing.

Held: That the five-year statute of limitations had no application to the instant case.

10. SPECIFIC PERFORMANCE — Grant of Water Power — Damages for Breach of Contract — Issue to the Jury. — The instant case was a suit for the breach of a contract granting water power for the operation of a mill. The decree of the trial court refusing to grant specific performance was reversed and the cause was remanded with directions that a decree for specific performance of the grants of water as construed by the Supreme Court of Appeals should be entered granting the appellant the relief prayed for in his bill, except that the damages sustained by the appellant for the closing of his mill in 1923, because of the insufficiency of the water supply, should not be decreed until after they had first been ascertained by a jury, upon an award of an issue out of chancery.

Appeal from a decree of the Law and Equity Court of the city of Richmond. Decree for defendant. Complainant appeals.

The opinion states the case.

Robert E. Scott and McGuire, Riely & Eggleston, for the appellant.

D. H. Leake, for the appellee.

GREGORY, J.,^* delivered the opinion of the court.

Warner Moore, surviving member of the firm of Warner Moore and Company, instituted a suit in equity, against The Chesapeake and Ohio Railway Company, for the purpose of requiring it to perform specifically its obligations, under several old water grants, to supply certain water for the operation of the appellant's mill and as incidental thereto, to require it to respond in damages for certain losses occasioned by the forced shut down of the mill on account of an...