Thompson v. Trenton Water Power Co.

Decision Date14 June 1909
PartiesTHOMPSON v. TRENTON WATER POWER CO.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to Circuit Court, Mercer County.

Action by Andrew Thompson against the Trenton Water Power Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The defendant is the owner of a water power; the plaintiff the grantee of water rights for the use of his mill. The action is brought for damages suffered by the plaintiff by reason of the shutting off of water from his mill from June 17 to July 19, 1906. The case turns wholly upon the construction of the various grants from the defendant and its predecessor, the Trenton Delaware Falls Company, to the plaintiff and his predecessors in title. The earliest grant was by way of lease and re-lease in 1835, for 241 square inches of water. The lease provided that the lessor should uphold, maintain, and repair the canal or main raceway, and keep up and repair the guard walls and the banks of the canal; that if at any time a breach should happen to any part of the banks, they would repair the same within as short a time as the nature of the case would admit, and that the rent should abate if the repair was not made within 30 days, and that they would be liable to no other damages for such breach not being repaired, nor for any stoppage of the water to be occasioned by their widening, clearing out, or repairing the canal or main raceway, except the abatement of rent after 30 days. The lease further provided that "for thirty days' stoppage in any one year there should be no reduction, the right to stop the water for that term for necessary purposes in their discretion being expressly reserved," and that if at any time there should be a deficiency of water to supply the lessees with the quantity leased, and such deficiency should be caused or continued after notice through the willful neglect or misconduct of the lessor, then the lessees should have a right to recover damages in addition to the rent to be withheld; "such additional damage in no case to exceed the amount of rent for the time that such deficiency may continue."

The next grant was by way of deed of bargain and sale for 100 square inches of water to be drawn under a head of 3 feet, which was granted subject, among other conditions, to the following: "The said party of the first part hereby reserve to themselves, their successors and assigns whatever time in each and every year may be requisite to make improvements and repairs to the said canal or main raceway, the dams, gates, aqueducts and other appurtenances thereof. And it is hereby covenanted and agreed by and between the said parties that the said party of the first part, their successors and assigns are not to be held liable for damages for any stoppage occasioned by such repairs and improvements or by breaks, floods, the drought of summer, nor for any other cause whatever, however long the said stoppage may continue, unless the said party of the first part shall take more time than thirty days in any one year to enlarge or increase the capacity of said canal or main raceway, or to make entirely new additions thereto, in which case only the said party of the first part, their successors and assigns shall be liable to an amount of damages not in any case to exceed the rent which would have accrued during such cases over thirty days, estimating the rent of the said 100 sq. in. of water to be drawn as aforesaid at $300 per annum." The grant also provided that, in case the grantee should experience a deficiency of water to supply the 100 square inches, and the deficiency should arise from the neglect of the grantor to make the necessary and needful repairs to the canal or raceway, the grantee might, after 10 days' notice in writing to the grantor, make such repairs, and the grantor was bound to repay the cost thereof to be determined by referees.

The third grant is of 25 square inches of water, and the conditions are the same as in the last-mentioned grant. The printed copy of this grant, however, contains a provision by which the grantor agreed to uphold, maintain, and repair the canal or main raceway, and the guard walls, banks, and other appendages thereof, and in case a breach should happen to be made, or any other casualty should occur to the canal or its appendages, by reason of which the water should not be supplied, that they would repair the same within as short a time as the nature of the case admitted.

The fourth grant is by way of lease for 120 square inches of water under a head of 3 feet, at a rental of $313. This lease is merely a lease of the water, and contains only a covenant on the part of the lessee to pay the rent.

The water was shut off, at the time of which the plaintiff complains, in order to permit the city of Trenton to construct a drain under the water power canal, for which the city agreed to pay the defendant in liquidation of its loss of rentals and the interruption of its business. The water power company took advantage of this period of time to make certain repairs. The trial judge charged the jury that the water could be lawfully shut off for repairs and improvements, but that the rights of the defendant were limited to the repairs that were made if those repairs required the shutting off of the water, and was only for such time as was required for the repairs, and 1 that for damages caused by the mill being shut down while the repairs were being made the plaintiff could not recover. The defendant insisted that the plaintiff could only recover damages for the number of working days in excess of 30 and that, inasmuch as the water was not shut off for 30 working days, deducting the intervening Sundays, the plaintiff was not entitled to recover.

Malcolm G. Buchanan (James Buchanan, on the brief), for plaintiff in error.

Linton Satterthwait, for defendant in error.

SWAYZE, J. (after stating the facts as above). The difficulties of construing the...

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3 cases
  • Kelley v. Baisch
    • United States
    • Idaho Supreme Court
    • November 15, 1938
    ... ... evidence. (Wood River Power Co. v. Arkoosh, 37 ... Idaho 348, 215 P. 975; Mark P. Miller Milling Co ... inconsistency. (Sec. 489, 13 C. J. 531; Thompson v ... Trenton Water Power Co., 77 N.J.L. 672, 73 A. 410; sec ... 236, ... ...
  • Paul v. Missouri State Life v. Company
    • United States
    • Kansas Court of Appeals
    • August 26, 1932
    ... ... Co. v. Meyer ... (Ark.), 152 S.W. 995; Thompson v. Trenton, etc ... Co., 73 A ... ...
  • Coffin v. Coffin
    • United States
    • New Jersey Court of Chancery
    • June 21, 1929
    ...the intention of the parties is that which is expressed in the writing. The Court of Errors and Appeals said in Thompson v. Trenton Water Power Co., 77 N. J. Law, 672, 73 A. 410, approving and adopting the rule of construction laid down by Lord Wensleydale in Gray v. Pearson, 6 H. L. C. "Th......

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