Paschall v. Passmore

• Decision Date: 17 May 1851
• Parties: Paschall <I>versus</I> Passmore.
• Court: Pennsylvania Supreme Court

15 Pa. 295

Paschall versus Passmore.

Supreme Court of Pennsylvania.

May 17, 1851.

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THIS case came up from the Court of Nisi Prius, Philadelphia.

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The case was argued by Price and Mallery, with whom was Hanbest, for Passmore.

Waln, for Paschall.

The opinion of the court was delivered May 17, 1851, by BELL, J.

On the trial of this cause at Nisi Prius, the principal subject of discussion and deliberation, so far as the law of the case is involved, was of the proper construction of that portion of the conveyance of 1801, which granted to Robinson and Abbott the absolute and exclusive right to use the waters of Cobb's Creek for the service of their mills and other water-works, "or for any other use, service, or purpose whatsoever;" and the saving clause, reserving to the grantor the user of so much of the waste water as the grantees might, in their discretion, suffer to escape through a waste-weir, to be by them constructed in the west side of the then contemplated race, since constructed. The action was for wantonly and maliciously depriving the plaintiff of this waste water, by means of a waste gate inserted at the foot of the race; and the question of fact referred to the jury was, whether there was proof of such wanton and malicious expenditure of the surplus water, to the injury of the plaintiff, and without any proposed benefit to the defendant? Under the evidence given, the jury found this issue affirmatively. But the defendant contended, and prayed the court to instruct the jury, that as, by the terms of the grant, the grantees were vested with "the sole, absolute, and exclusive right to take and divert the water" flowing in Cobb's Creek, the discretion reposed in them in respect of the escape of surplus water was an absolute discretion, to be determined solely by themselves, irrespective of the opinions and conclusions of third persons, and, consequently, there was no room for the question of fact sought to be raised by the plaintiff. The court thought differently, and accordingly directed, that under a proper construction of the conveyance, though the grantees were entitled to the plenary use of the whole body of the water, for any and every useful purpose to which it was applicable, and in the exercise of their discretion much must, necessarily, be left to them; yet this does not involve a capricious power, maliciously, wantonly, and unnecessarily to throw away the water of the stream, for the mere purpose of depriving the plaintiff of the use of the surplus; the discretion contemplated by the parties being a sound and reasonable one, to be exerted for the benefit of the grantees, and not solely to the detriment of the grantor and those claiming under him.

After enjoying the benefit of an extended discussion on this point, and much subsequent reflection, all the members of this court, who sat at the argument, agree that the instruction given was founded in a correct interpretation of the conveyance from Henry Paschall to Robinson & Abbott. In construing this instrument, we are entitled, not only to consult the language of the deed itself, but we may, with propriety, look to the circumstances which surrounded the transaction at the time of its inception, and the attendant considerations which, probably, influenced the parties. It is obvious, the grantees contemplated the erection of a mill or factory, of larger dimensions, and requiring a greater power to drive it, than before then had been known and used at that place. For this purpose, it might be necessary to secure the command of the whole of the stream, and this, doubtless, was a primary object of the purchasers. But before this the grantor and his predecessors had used the water for driving a mill of inferior capacity and as the whole power of the creek might not be necessary, at all times, to propel the works to be erected by the grantees, it naturally occurred that the surplus might be usefully employed by the grantor, on his remaining land bounded by the stream, in the propulsion of subordinate works, without interfering with the main design of the grantees. Keeping in view the respective objects of the contracting parties, shown not only by the facts which existed before the contract and at its inception, but manifested by their subsequent course in the erection of the several works now owned, respectively, by the plaintiff and defendant, we are, beyond question, furnished with a clue to the strong and explicit language used in the conveyance of the water-power, the reason of the reservation, and the subordinate character it is made to assume. The contemplated new works might require the whole force of the stream permanently, or, at least, occasionally, and hence the provision giving to the purchasers, in the most emphatic language, the right to appropriate the entire body of water whenever required for any useful purpose. Hence, the declaration that they might "take, use, employ, and appropriate the said water of the said creek for the use and service of any mill or mills, or other water-works, which the grantees may erect and build upon the above-described tract of land, or for any other use, service, or purpose whatsoever." Theirs was to be the first and dominant right. They were to possess it without any countervailing power to subtract from the free and full exertion of it, in the prosecution of a useful purpose. But yet, surely the grantor intended to stipulate for the reservation of a useful interest in the water, for something of value, and of which he and his assigns could not be deprived, in the indulgence of mere whim, caprice, or unneighborly feeling. He saved and excepted from the generality of the grant the waste water, to escape at an opening to be left in the race for that special purpose, "which waste water, so to be let off at that place, shall be for the use of the said Henry Paschall, his heirs and assigns." That it was thought the use of this waste water might be beneficial is evident, not only from the language of the reservation, but also from the application to be made of it, and its actual appropriation, in after years, as the motive-power of a grist and saw mill. True, the quantum of waste water was subjected to the discretion of the grantees. They were to leave "a place" in the race, "to pass off as much waste water as they, in their discretion, may think proper." But it is impossible to persuade oneself that the discretion intended by the parties was an arbitrary one. The very term itself, standing alone and unsupported by circumstances, imports the exercise of judgment, wisdom, and skill, as contradistinguished from unthinking folly, heady violence, and rash injustice. When technically employed in legal instruments, its proper acceptation is inseparable from the idea of dispassionate conclusion, having due regard to the rights and interests of others. It would require a very unequivocal declaration to overcome this, the natural signification of the word; and I find none such in the implication sought to be derived from the price paid by the original grantees, or in the manifest intent to make their interests and aims paramount those of the grantor. The construction given at Nisi Prius might, therefore, be left to rest on the unassisted language of the instrument. But when we couple it with the undoubted object of the grantor, as evidenced by the subsequent erection of mills, dependent on the waste water, and propelled by it for nearly thirty years, it is impossible to believe that a sane man would, in set terms, contract for the escape of a portion of water sufficient for such a purpose, but of which he might be deprived, in a year or a day, by the caprice, or some worse feeling, not only of the grantees, but of every one who might succeed them as owners. It is unquestionably true, that in determining the due exercise of the discretion accorded to the owners of the lower mills, they are to be treated in a liberal spirit. To establish a violation of their discretion, it is always incumbent on the complainant to show, by clear proof, a wanton and useless waste of the water, without any intent of benefit to themselves; and...