Frank A. Hall, Respondent, v. The Sterling Iron and Railway Company, Appellant

Frank A. Hall, Respondent, v. The Sterling Iron and Railway Company, Appellant. 1. Water Right—Appurtenance. A grant of a water right in a, natural stream, from a superior riparian owner to an inferior owner, passes under the term "appurtenances” in a deed of the inferior riparian land. 2. Grant op Water Power—Limitation — Construction. The question whether a grant of water power sufficient to operate a designated establishment is to be construed as indicating the quantity of water to be used or as limiting the use to a specific purpose is one of intent, to be determined from the language of the grant; and if the meaning is doubtful, that construction is to be given which shall best subserve the interests of the public by permitting the use of the water for any legitimate purpose which the owner may desire. 3. Grant op Water Power—Limitation — Construction. A grant conveyed the right of using or drawing off the water from a certain pond, "near a nail manufactory called the M. Works, for the purpose of carrying on tlie said works, in such quantity as would be sufficient for carrying on and working the furnace situated between said nail factory and the said pond, called S. Furnace, and for which purpose said water is now used, and no further or greater quantity; provided, always, that the right so as aforesaid granted of drawing off said water as aforesaid shall cease at all times whenever said furnace called the S. Furnace is in blast or making iron.” Held, that the grant was limited only as to the quantity of water to be used and not as to the purpose of the use. Reported below, 74 Hun, 10. (Argued January 28, 1896; decided February 18, 1896.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upion an order made December 26,1893, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. William B. Anderson for appellant. The language of the grant, properly construed, especially in view of the circumstances at the time it was made, limited the use of the water to,the Monroe Hail Works, and lapsed with the abandonment of those works. (Ashley v. Pease, 18 Pick. 268; Strong v. Benedict, 5 Conn. 210; Shed v. Leslie, 22 Vt. 498; Deshon v. Porter, 38 Maine, 289; Cromwell v. Selden, 3 N. Y. 253; Borst v. Empie, 5 N. Y. 33; Sibley v. Hoar, 4 Gray, 222; Hartwell v. M. L. Ins. Co., 50 Hun, 498; Tourtellot v. Phelps, 4 Gray, 370; Garland v. Hodsdon, 46 Maine, 511; Wakely v. Davidson, 26 N. Y. 387; Pratt v. Lamson, 2 Allen, 275; Albee v. Huntley, 56 Vt. 454; Fish v. Wilber, 7 Barb. 395; Carleton Mills Co. v. Silver, 82 Maine, 215; Groat v. Moak, 94 N. Y. 115; Terry v. Smith, 47 Hun, 334; Mudge v. Salisbury, 110 N. Y. 413; Olmsted v. Loomis, 6 Barb. 152; Biglow v. Battle, 15 Mass. 313; Adams v. Warner, 23 Vt. 395; Hines v. Robinson, 57 Maine, 324; Covel v. Hart, 56 Maine, 518; Rogers v. Bancroft, 20 Vt. 250.) The defendant has, by adverse possession and the acquiescence of the plaintiff and his grantors, re-acquired the right. (Terry v. Smith, 47 Hun, 333; Mitchell v. Walker, 2 Aik. 266; Gould on Waters [2d ed.], § 339.) The testimony shows that the defendant in no way obstructed the water from Mt. Bashan at any of the times mentioned in the complaint, except to maintain the control of the water at Mt. Bashan, which it always had maintained, and except for the purpose of refilling the little dam, which was a lawful obstruction; therefore, no injury was done the plaintiff. (De Baun v. Bean, 29 Hun, 236; Palmer v. Mulligan, 3 Caine’s Cas. 307; Platt v. Johnson, 16 Johns. 213; Gould v. B. D. Co., 13 Gray, 442; Clinton v. Myers, 46 N. Y. 511; Wood Edes, 2 Allen, 578.) The proof discloses that if the plaintiff owns any right whatsoever it is but an undivided one-lialf of the right alleged in the complaint. On the facts proved he is not entitled to judgment in his favor. He must prove his title, as alleged, and he has failed to do so. Wherefore, a new trial should be ordered. (Jackson v. Harrington, 9 Cow. 86; Henry v. Reichert, 22 Hun, 394; 2 Greenl. on Ev. § 331; 1 Greenl. on Ev. § 71.) E. A. Brewster for respondent. The plaintiff was not restricted to the use of the water to run a nail factory, but was entitled to use the same quantity of water for any other purpose, and upon any part of his premises. (Cromwell v. Selden, 3 N. Y. 253; Olmsted v. Loomis, 9 N. Y. 423; Wakely v. Davidson, 26 N. Y. 387; Comstock v. Johnson, 46 N. Y. 615, 620; Groat v. Moak, 94 N. Y. 115, 126; Mudge v. Salisbury, 110 N. Y. 413.) The right to use the water of the stream in question is clearly a right appurtenant to the plaintiff’s property, having all along been used in connection therewith. Being appurtenant, such right passes with the title of the property without being expressly specified in the deed. (Huttemeier v. Albro, 18 N. Y. 48; Simmons v. Cloonan, 81 N. Y. 557; Code of Civ. Pro. 498, 499.) For more than fifty years the water right in question has been exercised by the plaintiff and his predecessors in connection with machinery on the very sjiot where plaintiffs factory stands, and for some use other than a nail factory. From 1870 to 1891, a period of twenty-one years, the plaintiff and his predecessors exercised this right, and the defendant acquiesced. This amounted to a practical construction of the grant and gave plaintiff a prescriptive right. (Mudge v. Salisbury, 110 N. Y. 413.) [MAJORITY — Haight, J.] Haight, J. This action was brought to restrain the defendant from placing obstructions in the outlet of Mt. Bashan pond in Orange county, or the stream of water leading therefrom, and from doing any act which shall diminish or interfere with the free flow of the water from the pond through its outlet. Mt. Bashan pond is a lake about a square mile in extent, fed by springs and surface water. At the northeastern end of the lake is the outlet, from which runs a stream in a southerly direction. In the outlet of the lake there is a dam with gates by which the flow of the water can be accelerated or retarded to suit the requirements of those entitled to the use of the water. About three miles below there is another pond of about fifty acres in extent known as the Little Dam pond. From this pond there is a flume through which water was conveyed to the Southfield furnace, now known as the Sterling furnace, and from thence by a tail race to the original channel of the stream. A short distance below the furnace and on the opposite side of the outlet there was located a nail factory and a grist mill operated under one management and known'as the Monroe Works, which works were operated by the water flowing through the outlet. In 1811 one Peter Townsend was the owner of the Southfield furnace together with the lands upon which it was located, including Mt. Bashan and Little Dam ponds, and one Henry McFarlan was the owner of the Monroe Works together with the lands upon which they were located. On the 25th day of June of that year Peter Townsend and wife, in consideration of the sum of five dollars to them in hand paid, conveyed to Henry McFarlan “all the right'or privilege of using or drawing off the water from a certain pond called Mt. Bashan pond, situate in the town of Monroe, in the county of Orange, near a nail manufactory of the said Henry McFarlan and others, called the Monroe Works, for the purpose of carrying on the said works, in such quantity as would be sufficient for carrying on and working the furnace situate between said nail manufactory and the said pond, called £ Southfield Furnace/ occupied and owned by the said Peter Townsend and others, and for which purpose said water is now used and no further or greater quantity. Provided always, that the right so as aforesaid granted to the said Henry McFarlan, his heirs and assigns, of drawing off said water as aforesaid shall cease at all times whenever said furnace, called the Southfield Furnace, is in blast or making iron.” The trial court has found as facts that the plaintiff is now seized in fee and possessed of the lands upon which the Monroe Works, so called, were located; that he derived his title through sundry mesne conveyances from Henry McFarlan after the conveyance to him by Peter Townsend, and that the water power granted by the Townsend deed has by such conveyance, and as an appurtenance to the land, become, and is now, vested in the plaintiff; that the outlet of Mt. Bashan pond is a. natural stream of water passing •through the plaintiff’s lands, which furnishes the water power for the propelling of the machinery of his factory. The court further found that, in September, 1891, the defendant, by closing the gate in the dam upon the stream above the plaintiff’s property, and by forbidding and preventing the plaintiff from opening the outlet of the lake, deprived the plaintiff of the water power to such an extent that, some portions of the year, he could run his machinery only about a quarter of the time; and, as a conclusion of law, the plaintiff was entitled to an injunction. It further appears that the nail factory was destroyed by fire in the vicinity of fifty years ago, and that the factory has never been rebuilt; that the grist mill was converted into a basket factory which afterwards gave place to a shoddy mill, and thence to a manufactory of wooden articles, which business is still conducting therein. The first question presented for our consideration pertains to the plaintiff’s ownership of the water right conveyed by Townsend to McFarlan. It appears that McFarlan and one Joseph Blackwell were co-partners engaged in conducting the Monroe Works, and that the same was purchased with the money of the firm. The title, however, was taken in the name of McFarlan, and so remained at the time of his death. It further appears that his executors, pursuant to a power contained in the will, conveyed an undivided one-half of the premises to one Hudson McFarlan, and the other undivided one-half, including the water grant in question, to the seven children and heirs at law of Joseph Blackwell whose death had preceded that of McFarlan’s, and that subsequently the ■seven Blackwell heirs conveyed to Hudson McFarlan, through whom the plaintiff acquired his title. The only question pertains to the conveyance by the executors of the undivided •one-half to Hudson McFarlan. The deed describes the lands upon which the works were situated, and grants them “ together with all and singular the devices, buildings, rights, members, privileges, advantages, hereditaments and appurtenances to the same belonging or in any wise appertaining.” The water right is not specifically mentioned or otherwise referred to. We think, however, that it is an appurtenance to the land and passes with it. As we have seen, the water flows through the natural outlet of Mt. Bashan pond. This water course passes through the plaintiff’s premises. It is used in connection with the land, and cannot well be severed therefrom. It consequently is attached as an incident to it. In Simmons v. Cloonan (81 N. Y. 557) it was held that a water right was an appurtenance to real estate, and that by a conveyance of the land the purchaser takes the same with all the incidents and appurtenances thereunto belonging. In Mudge v. Salisbury (110 N. Y. 415) Gray, J., speaking with reference to a water privilege to run a grist mill, says that “ it was made appurtenant to the land conveyed and attached as an incident to it.” And in Huttemeier v. Albro (18 N. Y. 48, 51) Strong, J., says: “ It is a general rule that, upon a conveyance of land, Whatever is in use for it, as an incident or appurtenance, passes with it.” It is now claimed on behalf of the appellant that the language of the grant by Townsend to McFarlan, properly construed, especially in view of the circumstances at the time that it was made, limited the use of the water to the Monroe Hail Works, and lapsed with the abandonment of those works. Whilst on behalf of the respondent, it is contended that the only limitation in the grant intended pertained to the quantity of' water used and not to the character of its use. The question thus presented has already received the attention of our courts. In Cromwell v. Selden (3 N. Y. 253) it was held that under a reservation in a grant of land and water privileges of sufficient water to propel a grist mill the grantor is entitled to-the use of the water for any purpose not requiring a greater amount than that reserved. Habéis, J., in delivering the opinion of the court, says: “ It is a general rule of construction,, applicable to grants of water powers, that when the question arises whether, hy a grant of a sufficient quantity of water to propel a particular kind of machinery, the terms employed are-used merely to indicate the quantity of water intended to be granted, or to restrict the use of the water to the machinery specified, the former construction is to be favored, when the language of the grant will admit of such construction. The grounds upon which this rule rests are twofold: First, it is more beneficial to the grantee, without being more onerous to the grantor, that he should be permitted to apply the water granted to any machinery he pleases, not requiring a greater amount of power than that specified in the grant. - Secondly, it is supported hy public policy. The interests of the community will generally be best promoted by allowing an unrestricted applieation of the power to such machinery as will be most profitable to the owner.” In Olmsted v. Loomis (9 N. Y. 423) there was a reservation in a grant of a water privilege of so much water as was necessary for the use of a forge and two blacksmith bellows. It was held that the grant did not limit the use of the water reserved, and that the reference to the objects had regard to the quantity only. In Wakely v. Davidson (26 N. Y. 387) there was a grant of land, with the privilege of water to turn a fulling mill, when the same was not wanted for carding wool. It was held that the grant ivas not a limitation as to the purpose to which the water was to be applied, but was of the quantity to be taken. Wright, J., speaking of the rule applicable in such cases, says: “ When the construction is doubtful, that is to be preferred which would give to the grantee in the one case, and to the grantor in the other, a right to an unrestricted, rather than to a limited, use of the quantity of Avater granted or excepted.” In Comstock v. Johnson (46 N. Y. 615) there Avas a grant of a privilege of drawing Avater from a dam in sufficient quantity for the use of a carding machine and clothing Avorks. It was held that the Avords used in the grant Avere to be taken as a measure of quantity and did not limit the use of the Avater to the particular machinery specified. And to the same effect is the case of Groat v. Moak (94 N. Y. 115) and Mudge v. Salisbury (110 N. Y. 413), to Avliich allusion has already been made. We have thus particularly called attention to the cases in " our oavh court, for Ave think that the rule therein recognized is founded upon both justice and public policy. It is said that there are numerous cases in the Eastern states in which a different conclusion has been reached by the courts, but in our oaaui examination of those cases Ave have failed to discover any Avide difference in views. True, the courts in those states have recognized the right of a grantee to limit the use that is to be made of a water right as well as the quantity of Avater to be used, but this right is also recognized by our oavu courts. It is a question of intention to be determined from the language of the grant and under the rulings of our courts if the meaning is doubtful that construction shall be given which shall best subserve the interests of the jmblic by permitting the use of the water for any legitimate purpose which the owner may desire. There may be a slight conflict with reference to this view in two or three of the cases disposed of by the courts in our sister states, but in most of the cases we think their views are in harmony with our own. We only call special attention to that of Ashley v. Pease (18 Pickering, 268), in which it was held that where a grant is made of a water power, if it is left in doubt, whether it is a grant of a sufficient quantity of water to carry a particular kind of mill, making reference to such mill, to indicate and measure the quantity of water power intended to be conveyed, or whether it is a grant of the use of the water to carry such particular kind of mill only, the former construction is to be more favored, because, in general, it is most beneficial to the grantee without being more onerous to the grantor, and because such construction is most favorable to the general interests of the community. (See, also, Strong v. Benedict, 5 Conn. 210; Shed v. Leslie, 22 Vt. 498; Deshon v. Porter, 38 Me. 289; Sibley v. Hoar, 4 Gray, 222; Carleton Mills Co. v. Silver, 82 Me. 215; Albee v. Huntley, 56 Vt. 454; Garland v. Hodsdon, 46 Me. 511.) Treating the question as one of intent, to be determined from the grant under the rule recognized by the authorities, it becomes necessary to consider the terms used. It grants the right of using or drawing off the water of Mt. Bashan pond for the purpose of carrying on the Monroe Works in such quantity as would be sufficient for carrying on and working the Southfield furnace, and no further or greater quantity. It will thus be seen that whilst the purpose is named the. limitation is made to apply only to the quantity used. This is emphasized by the following provision, to the effect that “ the right so as aforesaid granted of drawing off said water as aforesaid shall cease at all times whenever the said furnace called the Southfield furnace is in blast or making iron.” Here again we have no limitation as to the character of the use, but a positive prohibition to the use of any of the water during the operation of the blast furnace. This, it appears to ns, is the clear reading of the grant. We do not feel called upon to interfere with the judgment, because it does not limit the use to eighty cubic feet of water per minute. The injunction authorized by the judgment follows the language of the grant. None of the other questions presented require special attention. The judgment should be affirmed, with costs. All concur. Judgment affirmed.