Richardson v. Clements

• Decision Date: 07 May 1879
• Citation: 89 Pa. 503
• Parties: Richardson <I>versus</I> Clements.
• Court: Pennsylvania Supreme Court

Page 503

89 Pa. 503

Richardson versus Clements.

Supreme Court of Pennsylvania.

March 24, 1879.

May 7, 1879.

March 24th 1879.

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

Error to the Court of Common Pleas of Montgomery county: Of January Term 1878, No. 24.

Pancoast, for plaintiff in error.—The clause in the deed is a reservation or exception, and must be construed most strongly against the grantor and most favorably to the grantee: Whitaker v. Brown, 10 Wright 199; Trout v. McDonald, 2 Norris 144; Buller v. Denning, 5 B. & C. 842; Danner v. Spurrier, 3 Bos. & Pul. 399; Barnes v. Burt, 38 Conn. 541.

When, in pursuance of a grant or reservation of a right to an easement, such easement has been located and defined, the right is exhausted, and the owner of the dominant tenement cannot make a material change in the location or character of the easement: Galloway v. Wildner, 26 Mich. 97; Fitzhugh v. Raymond, 49 Barb. 646; Hull v. Fuller, 4 Vermont 199; Washburne on Easements, sect. 3, pl. 22; Moorhead et al. v. Snyder, 7 Casey 514.

The words "or other process," immediately following the words "hydraulic ram, wheel," are to be construed as referring to things of the same kind as those particular words, that is, a process of which water should be the motive power. No process in which wind, steam, or any motive power other than water was intended or thought of by either of the parties to the deed. Where general words follow particular words, the rule is to construe the former as applicable to the things or persons particularly mentioned: Sedgwick on Statutes 423; Sandiman v. Breach, 7 B. & C. 96, 14 E. C. L. Rep. 22; Rawlings v. Jennings, 13 Ves. 39; Cavendish v. Cavendish, 1 Br. Ch. R. 467; Ingill v. Nooney, 2 Pick. 365; Bellany v. Bellany, 6 Florida 62.

C. H. Stinson, for defendant in error.—When property is granted, all that is necessary for the enjoyment of the grant is impliedly granted as incident to the express grant. And the same rule of construction applies to an exception in a grant: Allen v. Scott, 21 Pick. 25.

It is not alleged that any change is made in the substance of the thing itself, but it relates only to the means of obtaining it. If wind can be used as a power, and used for forcing water (which is not doubted), doing no injury to the plaintiff (which is not pretended), is it not clearly an "other process of forcing water."

The reservation of the right to a supply of water by "other process of forcing," implied the right to introduce any new or improved method to obtain that supply: French v. Morris, 101 Mass. 68; Bishop v. North, 11 M. & W. 418; Attorney-General v. Cambridge Gas Co., 6 Eq. Cases 304; Daud v. Kingscote, 6 M. & W. 174; Stevenson v. Wiggin, 56 N. H. 308; Trout v. McDonald, supra; Hart v. Hill, 1 Whart. 124; Cress v. Varney, 5 Harris 496.

Mr. Justice MERCUR delivered the opinion of the court, May 7th 1879.

This is a case stated. The parties own adjoining lands. Both properties were formerly owned by a Mr. Hallowell. While thus the owner of the whole he put in a hydraulic ram, on that portion of the land now owned by plaintiff, and thereby supplied with spring water his mansion-house on the land now owned by the defendant. He conveyed the whole property to Mrs. Butler. She continued for some time, to use the hydraulic ram to force the water to her house; but afterwards substituted a water-wheel in place of the ram. While thus procuring the water by means of the wheel, she conveyed about twenty acres of the land to one McNulty, from whom plaintiff acquired title. On the part conveyed was situated the farm-house, spring-house, poultry-house, and a large barn. She retained about seventeen acres, on which was the mansion-house, stone barn, stables, gardener's house and green-house. The deed which she executed to McNulty, contains the following clause, "subject nevertheless to the right and use by the said Gabriella M. Butler, her heirs and assigns, of a supply of spring water, by means of a hydraulic ram, wheel, or other process of forcing water to the said Gabriella M. Butler's premises; together with the free ingress, egress, and regress, to and from a certain pond, on the premises hereby conveyed, for the purpose of keeping up the same, and making all necessary repairs thereon, so that a supply of water may at all times be had; and of taking ice therefrom when it first freezes of sufficient thickness suitable for filling the ice-house on the premises of said Gabriella M. Butler, her heirs and assigns." After her sale Mrs. Butler continued to use the water-wheel until she conveyed to the defendant. He has continued to procure the water by the same process. He has established on the premises "a family or private boarding school." Now he has entered on the premises of the plaintiff with workmen "to remove the water-wheel, and in...