Whittenton Mfg. Co. v. Staples

• Decision Date: 04 October 1895
• Citation: 164 Mass. 319,41 N.E. 441
• Parties: WHITTENTON MANUF'G CO. v. STAPLES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 319

41 N.E. 441

WHITTENTON MANUF'G CO. v. STAPLES.

Supreme Judicial Court of Massachusetts, Bristol.

October 4, 1895

COUNSEL

A.M Alger, for plaintiff.

G.E Williams, for defendant.

OPINION

ALLEN J.

The parties have agreed upon all the facts deemed to be material. The Taunton Manufacturing Company built the reservoir dam on land owned by it in 1832, at a time when it was the owner of five mill privileges on the stream below, all of which were then in operation. This dam was for the sole use of the mills upon said mill privileges, and was essential to the reasonable enjoyment of all of the water powers, as the natural flow of the stream during much of the year would be inadequate for furnishing power. Under this state of things the corporation, in the first place, on August 12, 1833, conveyed to the Bristol Print-Works Company the two lowest mills, the land being described by metes and bounds, "together with all the buildings thereon, and all the rights, privileges, easements, and appurtenances to the said land in any wise appertaining or belonging, and all the streams and water rights and power thereof, also the dam and force of water." On September 6, 1833, the corporation conveyed the next lowest mill to Charles Richmond, under whom, through mesne conveyances, the defendant claims. This deed conveyed the land and buildings "and the water power, dam, and all the appurtenances and privileges thereto belonging," and contained further provisions as follows: "First. This conveyance is made subject to the right and privilege granted by said Taunton Manufacturing Company to the Bristol Print-Works Company, their successors and assigns, to draw water from a reservoir of said Taunton Manufacturing Company through the premises herein described and conveyed, and to enter on said premises for the purpose of relaying and repairing the aqueduct and pipes leading through the same. Secondly. The said Richmond, his heirs and assigns, grantees of these premises, shall be held and obliged at all times to pay to the Taunton Manufacturing Company, their successors and assigns, one-fifth part of all sums which they may be held or agreed to pay for flowage or damages to the proprietors of any lands by reason of any dam made, or which may be made, by said Taunton Manufacturing Company, or their successors or assigns of any part of the estate of the said Taunton Manufacturing Company, upon any stream or waters flowing to their mills. *** Fourthly. This conveyance is made subject to the reservations and privileges granted to the Bristol Print Works by the Taunton Manufacturing Company. Fifthly. *** The said Taunton Manufacturing Company intending hereby to alien and assign unto the said Charles Richmond, his heirs and assigns, all and singular the rights, privileges, easements, and appurtenances to the said land in any wise belonging or appertaining, and all the streams, dam, water power, and privileges, and head and fall of water (excepting as above excepted), for the considerations above mentioned and set forth. To have and to hold the lands, buildings, waters, and works aforesaid, with all and singular the rights, privileges, easements, and appurtenances thereto belonging, and which have been or of right can be used or enjoyed therewith, unto him, the said Charles Richmond, his heirs and assigns, forever, except as above excepted." The defendant contends that the above deed conveyed no right in the reservoir, and that the clause requiring Richmond and his heirs and assigns to pay one-fifth of the damages for flowing is not binding on subsequent owners; and these are the principal questions which have been argued in the case. It is not disputed that the title and rights of the Taunton Manufacturing Company to the upper mill and privilege have come through mesne conveyances to the plaintiff.

If the construction of a deed is doubtful, the practical construction put upon it by the parties and their successors may be looked at in connection with the deed itself and the circumstances existing at the time of its execution. Reynolds v. Rubber Co., 160 Mass. 240, 35 N.E. 677, and cases there cited. Until recently, the parties in interest have assumed and have acted on the theory that Richmond and his heirs and assigns had an interest in the additional water power created by the reservoir, and were bound to pay one-fifth of the damages for flowing. This is shown by the following facts: On July 15, 1835, the Taunton Manufacturing Company conveyed to James K. Mills and others the upper mill and privilege on the stream, "with the dams and water privileges thereon, together with all the right which said Taunton Manufacturing Company have to flow the land between the premises hereby conveyed and the bridge where the old road to Boston crosses Canoe river; the dams, water privileges, and rights of flowage hereby intended to be granted and reserved being fully set forth in and subject to an agreement by and between the grantor and grantees, bearing even date with, and to be referred to always as a part of these presents." The said agreement provided, among other things, as follows: "First. The reservoir dam at White's bridge above Whittenton shall not be altered in any mode without the consent of the parties therein interested, or a majority of them: provided, however, that the proprietors of the Whittenton mill shall always cause to be let down from said reservoir a quantity of water sufficient to propel the present machinery of the Hopewell mills [the Hopewell mills were next below the Whittenton mill] until the water in said reservoir shall be drawn down to the level of the present Whittenton dam; and the proprietors of the Whittenton mill shall be entitled to a fair compensation from all the parties interested in the said reservoir for the time and labor of drawing the water as aforesaid. Second. The water between said reservoir dam and Whittenton mills shall be used hereafter as has been heretofore customary; that is to say, the Whittenton proprietors shall do no act to prevent the natural flow of water over their premises by raising their dam above its present height. *** Fourth. The damages accruing from time to time for flowage shall be apportioned between the proprietors of the Whittenton mills and the mills now and formerly belonging to the Taunton Manufacturing Company by the award of judicious persons," etc.

The defendant derived his title as follows: The title of Richmond passed to Galen Hicks, under the foreclosure of a mortgage dated October 4, 1833, in which reference was made to the deed of the Taunton Manufacturing Company to Richmond. On March 1, 1848, Hicks conveyed to Dean & Morse with a similar reference; and they, in like manner, on April 1, 1849, conveyed to the Dean Cotton & Machine Company, which in its turn, on November 28, 1874, conveyed to the Taunton Cotton & Machine Company the land and water privileges, "together with all the rights of flowage appurtenant to said estate, and all the right, title, and interest of the grantor in the reservoir and flowage company [this company will be hereinafter described], and subject to all the liability on account of such rights; and, in relation thereto, reference may be made to an agreement between the Taunton Manufacturing Company and James K. Mills and others, dated July 15, 1835, and to the award," etc. On June 1, 1880, the Taunton Cotton & Machine Company conveyed the property to Park Mills, a corporation, with this provision: "This conveyance shall also include whatsoever rights, title, and interest, with the liabilities thereon, said corporation has in the Taunton Reservoir & Flowage Co." On July 19, 1889, the Park Mills conveyed to Staples, the defendant, with a similar provision. On the same day, the Taunton Cotton & Machine Company also executed a deed of the same premises to the defendant, "together with all rights of flowage appurtenant to said estate, and all the right, title, and interest of the grantor in the Reservoir & Flowage Co., and subject to all the liabilities on account of such rights. And, in relation thereto, reference may be made to three papers; namely, first, an agreement between the Taunton Manufacturing Company and James K. Mills and others, dated July 15, 1835, together with the award," etc.

The reservoir and flowage company referred to in some of the above deeds was established as follows: In 1852, the owners of the several mills, all being corporations, associated together as a voluntary association, under the name of the Taunton Reservoir & Flowage Company, "for the purpose of aiding in the supplying themselves with water by the reservoir dam," and appointed Willard Lovering, one of the owners of the Whittenton mills, their agent, from time to time, as the damages for flowing should become due, to collect their proportions thereof, and to pay the same to the owners of lands flowed. The annual damages for flowing were in the same year fixed by agreements at $1,842.89, and have not since been changed. These damages are fair and reasonable. From that time to the present, Lovering (who died in 1875) and the successive owners of the Whittenton mills have continued without objection, in behalf of the owners, from time to time, of the several mills, under the name of the Taunton Reservoir & Flowage Company, to collect from said mill owners and to pay out said damages for flowing, and to repair the reservoir dam, and to draw water from the reservoir, and to collect from the several mill owners their respective shares of the expense thereof. The defendant, however, without assenting thereto or dissenting therefrom, otherwise than is herein stated, refused from time to time, as said charges accrued, to pay any part thereof, on the ground that he...