Washburn & Moen Mfg. Co. v. Salisbury

• Decision Date: 24 October 1890
• Citation: 152 Mass. 346,25 N.E. 724
• Parties: WASHBURN & M. MANUF'G CO. v. SALISBURY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 346

25 N.E. 724

WASHBURN & M. MANUF'G CO. v. SALISBURY.

Supreme Judicial Court of Massachusetts, Worcester.

October 24, 1890

Reserved from supreme judicial court, Worcester county.

HEADNOTES

Waters and Water Courses 154(1)

405 ----

405VII Conveyances and Contracts

405k154 Easements and Rights Appurtenant to Other Property

405k154(1) In General.

Where millowners had title to pond supplying mill through flume and interest in reservoir by agreement with other mill owners for storage of water for pond, reservoir being declared appurtenant and forever inseparable from mills and water privileges connected therewith, which were charged in whosesoever hands they should come with share of cost of maintaining reservoir conveyance of mills without pond, but with right to draw water therefrom through 6 inch pipe as long as pond continued, with simultaneous lease to grantee for 20 years, of all water in pond for manufacturing, through flume to mill, at annual rental which was paid, held not to impliedly pass rights to pond water or reservoir after expiration of lease, nor except as expressly granted, though water from pond or reservoir, or like quantity, was necessary to operate mill.

In 1834, Stephen Salisbury, since deceased, erected a brick mill, and other buildings, known as the "Grove Mills," designed for the manufacture of wire, and other metal goods on land belonging to him in Worcester, on the east side of Grove street, a highway then lately laid out and on the southerly side of Mill brook, a stream of water running through said city. About the same time he built a dam across Mill brook, and raised a head of water on his own land on the westerly side of Grove street, which was called "Salisbury Pond," and the dam has ever since been maintained at substantially the same height as it was then built. He also built a flume which conducted the waters of the pond directly to the mills, where it was used for power and other purposes, in connection with the manufacture of wire, and other materials. October 1, 1834, he leased the Grove mills, including the water-wheel, dam, flume, and head of water, and privilege, to certain lessees, for the purpose of manufacturing wood, metal, or leather, for the term of 10 years, and said property was continuously leased till July 1 1868, for the same purpose; and for a long time prior to that time the company and its predecessors were in possession of the premises, as lessees of Stephen Salisbury. The leased premises, including the head of water, flume, water-wheel mill, and privilege, had always been used up to said July 1, 1868, for the manufacture of wire, and other materials, and the water privilege was always necessary for power, and the washing of wire, and for other purposes in connection with the manufacture. Prior to July 1, 1868, no mill was built on the northerly side of Mill brook at Grove street, and neither Salisbury nor any other person had ever owned or occupied any other mill operated in whole or in part by the head of water in Salisbury pond. But the waters of the pond had been used by said mill for power, and other purposes in connection with said manufactures, and were necessary for that purpose. November 24, 1849, for the purpose of increasing the value of Salisbury pond as a head of water for the brick mill, said Salisbury entered into an agreement with other owners of mills on Mill brook to purchase, control, and maintain a reservoir higher up said stream, known as "North Pond." The material parts of this agreement are as follows: "Whereas, the undersigned parties are now the owners of or interested in certain mills and mill privileges upon the Blackstone river, in Worcester, below 'North Pond,' so called, viz., the brick mill and privilege in Grove street, being owned by Stephen Salisbury, each of which several mills and privileges are to be considered as separate and distinct properties and estates in construing and applying this instrument, which several mills and estates would be benefited by maintaining a reservoir at North pond, and for that purpose their respective owners are willing to pay and contribute a fair proportion of the expense thereby occasioned, and are moreover desirous of so annexing the use and benefit of such reservoir to the respective mills and estates aforesaid as to render them appurtenant to, and forever inseparable from, the same, and at the same time to take such measures as may enable them, and their respective heirs and assigns, to manage and preserve the said reservoir, or enlarge the same, so as to enjoy the benefits thereof to the best advantage: Now, this indenture witnesseth: That they hereby mutually, each for himself, his executors, administrators, heirs, and assigns, to and with all the others severally, as well as jointly, their respective heirs, executors, administrators, and assigns, doth covenant and agree as follows, viz.: That they will, as soon as can reasonably be done, purchase of the Blackstone Canal Company, or their assigns, their interest and title in and unto said North-Pond reservoir, and their lands near said pond, together with all rights and privileges belonging to the same, and will severally pay and contribute towards the purchase money therefor, to any one or more who shall advance the same, the proportion thereof which the value of the mill and estate, or mills and estates, of each bears to the aggregate value of all their said mills and estates to be fixed and ascertained in manner hereinafter provided; and the said reservoir property, as soon as acquired, so far as its use and benefit is concerned, shall become appurtenant to the several mills and estates aforesaid, to be forever held and enjoyed in common, in the proportion aforesaid, by the parties, their respective heirs and assigns, and never to be separated or divided, nor aliened nor disposed of, separate or distinct from the respective mills or estates aforesaid. That said reservoir shall be forever maintained, for the use of said mills and estates, by the owners or proprietors thereof, and may be enlarged at their common charge whenever and so often as the major part in number and value of said owners or proprietors shall so determine in writing, or by their legal vote; and if, in repairing, maintaining, or enlarging said reservoir, in pursuance of such writing or vote, any money shall be advanced or expended, each and every owner or proprietor of said mills and estates shall pay and contribute, on demand, the proportion thereof to be fixed and ascertained as aforesaid, to be recovered by...