Union Water Power Co. v. Inhabitants of Lewiston

• Decision Date: 17 September 1906
• Citation: 101 Me. 564,65 A. 67
• Parties: UNION WATER POWER CO. v. INHABITANTS OF LEWISTON.
• Court: Maine Supreme Court

65 A. 67

101 Me. 564

UNION WATER POWER CO.

v. INHABITANTS OF LEWISTON.

Supreme Judicial Court of Maine.

Sept. 17, 1906.

Report from Supreme Judicial Court, Androscoggin County.

Action by the Union Water Power Company against the inhabitants of Lewiston. Case reported. Judgment for plaintiff.

Action on the case against the defendant city to recover damages for diverting and drawing more water from the plaintiff company's dam for power purposes than the defendant city is entitled to draw for such purposes.

The declaration in the plaintiff's writ is as follows:

"In a plea of the case, for that the plaintiff, on the fifth day of November, 1878, was and ever since, down to the present time, has been and now is the owner of certain stone dams across the Androscoggin river, at the head of the falls on said river between Lewiston and Auburn and of the land on both sides of said river where said dams are located, and along both sides of said river above said dams, and also of the right to hold and store, by means of said dams and the flashboards thereon, the waters flowing in said river, to the height to which the same can be held, retained, and stored by means of said dams and flashboards for the purpose of creating and maintaining a mill pond above said dams; and also of a certain mill pond and maintaining a mill pond above said dams; and of certain lands with the buildings, gatehouses, gates, and other structures therein at the outlet of said mill pond, maintained and used for the purpose of controlling and letting out the waters from said mill pond and river; and also of certain canals in said Lewiston, by means of which the waters from said river and mill pond are supplied by the plaintiffs through said gates and canals, to mills and factories in said Lewiston, located on said canals, for use for power purposes.

"And the plaintiff avers that by virtue of a certain lease or conveyance between the Franklin Company and said defendant, duly made and executed between said Franklin Company and said defendant, dated the fifth day of November, 1877, said Franklin Company did thereby and therein demise, let, and lease unto said defendant as appurtenant to a lot of land owned by said defendant and known as the 'pumping station lot,' the right, privilege, and easement of drawing from said Androscoggin river and the mill pond above said dam in said Lewiston, water to the extent of 600 H. P. for the uses and purposes specified and defined in said lease or conveyance.

"And the plaintiff further avers that it now and during all the time aforesaid has owned, exercised, and used the right to hold, store, manage, and control, by means of said dams, flashboards, and gates, the waters of said Androscoggin river flowing into said mill pond, and to draw off the same from time to time to supply the mills and factories in said Lewiston upon said canals with power to run and operate their machinery, and to sell and dispose of the water so held and stored by it for power purposes, and for which it receives compensation from said mills and other persons to whom it sells and disposes of said water for power purposes, and being so seised of said premises and appurtenances, water rights, water power, and privileges, the defendant, knowingly and with intent to wrong and injure the plaintiff and to deprive it of the use and benefit of said premises and appurtenances, water rights, water power, and privileges and the sale and use of the waters of said river as above set forth, and without any authority or right so to do, at said Lewiston, on the first day of December, 1893, and on divers other days and times between the time aforesaid and the day of suing out this writ, by means of a certain covered canal leading from a point on the banks of the mill pond aforesaid, above dam No. 4, in said Lewiston and across the plaintiff's land to the pumping station lot, so called, belonging to the said defendant, did draw and divert during all the time aforesaid, and still does draw and divert great quantities of water from said river and mill pond aforesaid, in excess of the 600 H. P. leased and conveyed under said lease or conveyance of November 5, 1877, and by means of gates and other structures belonging to said defendant and situated wholly upon said pumping station lot, and controlled and operated by the servants and agents of said defendant, does discharge the water so unlawfully drawn and diverted by it as aforesaid, into the Androscoggin river below the plaintiff's dams, so that all use, benefit, and enjoyment of the water so drawn, diverted and discharged is lost to the plaintiff and its supply of water in said Androscoggin river, and said mill pond is depleted and greatly diminished thereby.

"And the plaintiff avers that said defendant has no lawful right to draw and divert the water as aforesaid from said river and from said mill pond of the plaintiff in excess of 600 H. P. in the manner above set forth and described, and that by reason of such unlawful drawing and diversion of said water as aforesaid, the plaintiff is deprived of the natural flow of the same and of the use, enjoyment, and benefit of the same in supplying the mills and factories of the income and profit which it is of right entitled to receive and have from the use and sale thereof—to the damage of the said plaintiff (as it says), the sum of ten thousand dollars."

Plea, the general issue, with the following brief statement:

"And for a brief statement of special matter of defense to be used under the general issue above pleaded, the said defendant further says:

"(1) That the defendant had license and authority to do all acts in the using of water set out in the plaintiff's writ.

"(2) That whatever water was used in conformity with authority granted by the plaintiff's predecessor in title and right, the Franklin Company, and by mutual agreement between the parties, and by lease and other writings between the parties.

"(3) That whatever water was used was for the purpose of carrying out the agreement between the parties whereby the sum of $200,000 was paid for such use, and the same was in conformity with the spirit and intent of such agreement, or lease, or both, and other deeds or writings, and the votes of the city and the city council and water board.

"(4) Defendant will rely upon the statute of limitations to any claim the plaintiff may have set out in its writ and declaration."

Tried at the April term, 1905, of the Supreme Judicial Court, Androscoggin county. After the evidence had been taken out, it was agreed to report the case to the law court with the stipulation that "upon so much of the foregoing evidence as is legally admissible and competent" the said "law court to render such judgment as the rights of the parties require."

The case appears in the opinion.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, POWERS, and SPEAR, JJ.

White & Carter, for plaintiff. Poster & Foster and George S. McCarty, for defendant City.

EMERY, J. This action is for drawing more water from the plaintiff company's dam for power purposes than it concedes the defendant city is entitled to draw for those purposes. We have no occasion to enter upon any inquiry as to either party's legal rights to the water apart from the terms of a grant by written indenture made to the city by the plaintiff's predecessor in title, since, for reasons hereinafter stated, the amount of water the city is entitled to draw for power is fixed and limited by the terms of that indenture. The problem, therefore, is to ascertain what amount of water is named or specified in that indenture for the city to draw for power purposes.

It is sometimes said that the problem in such cases is to ascertain the intention of the parties, or what the parties meant by the language named. This is hardly accurate, for sometimes, as was not improbable in this case, when the parties have agreed upon the language of their contract they may have each a different understanding of the meaning of that language. The real problem is to ascertain what meaning the language itself gives out, what intention or purpose is expressed by the words and phrases used. It is that meaning by which the parties are bound, even though one or the other honestly believed the language to have a different meaning.

Words and phrases, spoken or written, usually have a common, uniform meaning understood by speaker and hearer, or writer and reader, alike. It is this consensus of understanding that makes social and business intercourse possible. When, therefore, the words and phrases used by the parties are known, they are usually to have effect according to this common meaning, whatever either party may have supposed they meant. But while this is generally true, it is not universally true. The same word or phrase may have different meanings in different instruments and in different contexts in the same instrument. It may have different meanings as applied to different subject-matters and also in different situations of the same subject-matter. So, its common meaning may be overborne by other words or phrases in the same instrument. Hence, it is not enough to read only the specific words or phrases in which the grant in this case was made. The then situation and prior rights of the parties, the nature and situation of the subject-matter, the object or purpose of the parties in making the contract, or in putting its terms in writing, are to be learned, and the whole contract or instrument is to be studied, to ascertain how far the common meaning of the particular words or phrases is modified by surrounding circumstances, and by other words and phrases in the same instrument. All these have been done in this case. But, after all, the problem still is to ascertain the real meaning of the words used, the purpose or intention expressed by those words, for they must be presumed to express what the parties had in mind.

In this case the...