Phoenix Cotton Manufacturing Company v. Hazen

• Decision Date: 07 September 1875
• Citation: 118 Mass. 350
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Phoenix Cotton Manufacturing Company v. Samuel Hazen & another

118 Mass. 350

Phoenix Cotton Manufacturing Company v. Samuel Hazen & another

Supreme Court of Massachusetts

September 7, 1875

Middlesex. Bill in equity, filed November 27, 1872, by the grantee of the mill property of the United Society of Shirley by a deed dated October 1, 1866, against Samuel Hazen, the owner of mill property higher up the same stream, and Benjamin S. Binney, lessee of one of said Hazen's mills to obtain the construction of a contract made April 17, 1865 between the trustees of the said United Society and the defendant Hazen, and praying that the defendants might be enjoined from violating the same. The nature of the case appears in the opinion.

Bill dismissed.

G. F Hoar & S. Hoar, for the plaintiff.

F. A. Worcester & W. S. Gardner, (T. H. Sweetser with them,) for the defendants.

Morton, J. Colt & Ames, JJ., absent.

OPINION

Morton, J.

The defendant Hazen has owned and occupied his mill privilege since 1827. On May 7, 1852, he entered into an agreement for the purpose of forming "The Shirley Village Reservoir Company," and of creating a reservoir above his dam.

By this agreement, Hazen was to have the right, at any time, to "raise his present dam so that the surface of the rollway thereof will be eighteen feet above the surface of the opening of said Hazen's present breast wheel" in his factory; the reservoir company were to build and keep in repair the reservoir, and they were to control the manner of preserving the water therein and of drawing water therefrom; but it is entirely clear that it was not the intention to affect in any way the right of Hazen to use the water after it left the reservoir, as the agreement contains the provision that "the said Hazen reserves the liberty of controlling the water in his said lower pond raised as aforesaid in the same manner as though this agreement had not been made." Under this agreement the reservoir company, in which Hazen was interested to the extent of a quarter part, built the reservoir dam, and maintained it until April 17, 1865, when the agreement upon which this suit is founded was made.

The bill does not proceed upon the ground that the defendants, as riparian proprietors, have made an unreasonable use of the water of the stream to the injury of the plaintiff's mill below; but it alleges only that they have used the water in violation of the provisions of this contract.

Hazen, as owner of his privilege, has the right to use the water of the stream in a reasonable manner, unless he has limited or restricted this right by his contract with the plaintiff's grantors, and the only question in this case is, whether the plaintiff has proved any acts of Hazen or his lessees which are prohibited by his contract.

By the agreement of 1865, Hazen conveys to the trustees of the United Society in Shirley, who, with him, were joint owners of the reservoir, all his interest in the reservoir dam together with the right to raise the dam four feet and flow his lands,...