Terry v. Smith — 14 N.Y. St. Rep. 551

Majority

p. 551

Rose E. Terry, App’lt, v. Elam M. Smith, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 13, 1888.)

Headnote

1. Grant—Construction of

The grant to a person of the right to use water for factory purposes as then used,” limits the amount of water, hut not the method of its application for the purposes.

3. Same—Presumption of from twenty years use.

Twenty years use of such a right creates the presumption of a grant.

E. A. Brewster, for app'lt; H. W. Wiggins, for resp’t.

The plaintiff’s predecessor in title (Deyo) acquired the right to use the water for the spoke factory in connection with a grist mill then owned by Deyo’s grantor and one Sinsebaugh. The right was conveyed in general terms, and was embraced in the terms “as then used.” As the Deyo title was acquired as far back as 1859, there is some uncertainty as to the extent of the grant. It does, however, appear that the grist mill had the first right to the water to the extent it would flow through a separate floom, the floor of which was ten inches lower than the floom leading to the Deyo factory, now plaintiff’s. If this state of things had continued, the case would be free from all controversy. The mill was run by two overshot wheels, one six and the other seven and one-half feet in diameter. The mill carried three runs of stone. In 1864 the miller put in a turbine wheel in the place of the two overshot wheels, and has furnished power to the mill ever since with the same three runs of stone. The evidence shows that the turbine wheel does not use so much water as the two overshot wheels, and the fact is so found. In such a case it is well settled that the words of the grant are held to intend to Emit the quantity of the water, and do not restrict the method by which it is to be applied. Groat v. ; Moak, 94 N. Y., 115 .

presented in applying the ¿power to the turbine wheel it took the water some feet

p. 552

lower from the bulkhead than the opening which fed the overshot wheel. The evidence points to the conclusion that the power can be best applied in that way, and in fact no more water is used, which is the real question. If, therefore, no more water is used, the point of its entry upon the wheel is unimportant. The finding is, and the evidence supports it, that no more water was used by the turbine wheel than was of right to be used by the old method by overshot wheels. The turbine in fact uses less water, and it is probable that the testimony of some of the witnesses as to the diminution of power to the Deyo premises is explainable by the failing of the stream since 1855. The overflow after plaintiff’s use was probably then much greater, but as the Deyo mill is the subservient one, the loss of power necessarily follows that property. The rights of the parties are fixed by lapse of time. In 1864 the turbine wheel was first put in and was replaced when the mill was burned down. Twenty year’s use supposes a grant. The defendant has used, as a matter of right, this turbine wheel, and the point of depression where the water enters to it for more than twenty years. Some twelve or thirteen years of which time even since the .plaintiff obtained his title. This established a right to the method of use. Belknap v. Trimble, 3 Paige, 605; Smith v. Adams, 6 id., 435.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.