Hall v. Sterling Iron & Railway Co.

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

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

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

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 )

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

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.