Warren Manufacturing Co. v. Hoffman

Alvey, C. J. delivered the opinion of the Court. We discover nothing in the rulings of the Court below that requires this Court to reverse the judgment. The question here is, whether the Court below committed error in granting the prayer of the plaintiff, with the modification added, and in rejecting the first and second prayers offered by the defendants. We think there was no error committed in this respect, of which the defendants can complain.

The whole controversy turns upon the fact, whether the defendants had wrongfully and in violation of the grant by Charles Jessop, of the 10th of October, 1816, raised the breast of their milldam, so as to back the water upon the mill of the plaintiff above that of the defendants. ¹⁷⁰ By the lease from John Harryman to Samuel Smith and others, under whom the defendants claim, there was an assurance or covenant hy the lessor, that there was then, and should forever remain, for the use and benefit of the lessees, and their assigns, and as appurtenant to the land demised, “ a fall of at least eleven feet at common water mark, at the rock stone in the middle of the falls aforesaid,” where a dam was then in course of erection; and that the lessees should “forever have the right and privilege of damming and pooling the water at the aforesaid rock, thereby covering so much land on both sides of the said falls as may be necessary and sufficient to secure an uninterrupted fall from above, down to that place, of at least eleven feet as aforesaid.” By the subsequent lease from Charles Jessop (under whom the plaintiff claims) to Smith and others, of the 10th of October, 1816, it was manifestly intended to grant and confirm to the lessees an extension of the water power previously acquired by them; but, at the same time, it is quite clear, that it was intended that there should be a limit to the power thus granted. The terms employed, it is true, are inapt and quite inappropriate to define the limits of the power granted ; but there can be no doubt, upon the whole context of the instrument, as to what was the real meaning and intention of the parties. The lease was of so much land as was at the time covered by the waters of the Gunpowder Falls, by the backing or damming the stream by the dam then erected, or as might or should be requisite and necessary to be covered by the hacking or damming such stream, according to the terms employed, “ so as to make the fall thereof at least twelve feet at common water mark,” at the point designated; “and the right and benefit of the water to the extent