[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 117
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 121
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 122 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 124 The rights of the parties depend upon the true construction of the reservation contained in the deed of 1841. It is very clear that the grantor in that deed, for the small consideration then paid by the grantees, did not mean to cripple the large and valuable factory by depriving it of any water power it might need to propel its machinery. If the defendant's contention is right, that he can draw water for his mill whenever the water in the pond is so high that it would run over a dam not more than nine feet high, then he can run his mill most of the time, many times when the factory cannot be run, and instead of having a secondary right to the water he will have substantially the primary right. That the parties to the deed intended to effect such a result cannot be presumed. The reservation is very comprehensive. The grantor was to have the use of the water reserved at all times; not only the use of the water in the dam, but in the river as it then was or might thereafter be; not only the water in the dam as it then was, but in any dam that might thereafter be erected; and it was to have not only all the water necessary to operate the machinery then in the factory, but also all the water necessary to operate any additional machinery which might be put in the factory, or in any building to be erected on the same site, of like or less dimensions.
The reservation of water sufficient to operate the machinery *Page 126 then in the factory was general. The reference to such machinery was not to limit or define the purpose for which the water could be used, but to measure and limit its quantity. (Cromwell v.Selden, 3 N.Y. 253; Olmsted v. Loomis, 9 id. 423; Wakely v. Davidson, 26 id. 387; Comstock v. Johnson, 46 id. 615.) The reservation was of that quantity of water power, and that could be used for any purpose and anywhere. There is nothing in the reservation confining the use of that power to the factory building; but if the grantor desired water for additional machinery, then it could be used only for such additional machinery as it should place in the same building, or in one not larger, to be placed upon the same site. There was not a reservation of power sufficient to operate all the machinery which the factory could contain, but only all the machinery then in the factory, or which might thereafter be placed therein, or in any building not larger, to be erected upon the same site. Therefore, when the grantor used all the power requisite to operate the machinery then in the factory it had no right to use any more power to operate additional machinery not in the factory, although such additional machinery could have been placed in the factory. To come within the terms of the reservation, the additional machinery must be in the factory. The additional machinery was not only to be a measure of power, but also a limitation upon the use of the power. The quantity of water needed for the machinery then in the factory could then be known and measured, but the quantity which might be required for additional machinery could not then be known or measured, and hence there was the limitation as to such machinery. But the grantor made an absolute reservation of a quantity of water sufficient to operate the machinery then in the factory, and that water it could use anywhere. That results from the fact that it owned the water, and reserved it, and no one could control it in the use thereof. It could use a portion of it to operate machinery in the factory, and the rest to operate machinery in some other building, or it could use the whole of it in a building located upon some other site; and so the law was recognized to be in the case of *Page 127 Comstock v. Johnson (supra). In that case there was a grant of certain real estate, on which stood a carding machine, and clothing works and shops, and of the privilege of drawing from a dam sufficient quantity of water "for the use of said works." It was held that the terms used for granting the water were to be taken as a measure of the quantity, and not a limitation of the use of the water; and Chief Judge CHURCH said that the grantee "had the right to use the water for any machinery and in any place which he was entitled to occupy."
At the time of the execution of the deed to Clark and Moak, in 1841, the machinery in the factory required for its operation one hundred horse power, and hence so long as the plaintiffs did not use more than that quantity in the main building and the wing combined, the defendant had no cause to complain that they used too much. The finding is that the plaintiffs required to operate all their machinery only from fifty to sixty horse power, and hence if all the water in the river was required to produce that power, they were entitled to it as against the defendant.
The defendant claims, however, that the deed of 1841 is to be construed in reference to the circumstances then existing, and that, therefore, the plaintiffs are required to obtain their power from a dam no higher than that then existing. We think otherwise. The reservation was of a definite quantity of water, "at all times," and hence that the plaintiffs could have that water, they had the right to hold and store it until they could take it, and thus produce the power to which they were entitled. There was no limitation as to the height of the dam. The grantor could take the water from that dam or any dam which might thereafter be erected. It was to have water enough to operate its machinery, and if that dam would not furnish it, it could erect another that would. If it had been intended to confine the dam which might thereafter be erected to the same height, a limitation of so much importance would probably have been plainly expressed, as the limitation was in reference to the size of any other factory building which might be erected on the same site. Construing the reservation in the light of all the *Page 128 circumstances existing at the time of the grant, to-wit, the quantity of machinery and of water needed for its operation the size, value and importance of the factory as compared with the grist-mill, the fluctuating quantity of water in the river, which was certain to decrease as the country was cleared up, there can be no inference favorable to the contention of the defendant.
The further claim is made on behalf of the defendant that the reservation must be construed in reference to the statute which authorized a dam of only eight feet. It is not certain, however, that the grantees in the deed of 1841 knew any thing about that statute. It was a private statute, and there is no presumption that such statutes are generally known, and courts do not take judicial notice of them. If both parties to the deed did have knowledge of that statute, they also knew that it was practically a dead letter. The dam as then maintained had no lock, and entirely interrupted navigation in the river, and was about nine feet high without flushboards, which when used made it still higher. So the grantees had no right to suppose that the statute would be conformed to, and that a dam which was already one foot higher than the height mentioned in the statute would not be made still higher to produce the power reserved.
It is also argued by the learned counsel for the defendant that as the dam is a violation of the statute the plaintiffs cannot claim the right to maintain the same, and hence that they can claim no relief from a court of equity. The grantor in the deed of 1841 owned the bed of the river and the lands on both sides of the river above and below the dam. Assuming that the river is technically a public highway, it has long since ceased to be practically navigable. Although it was a public highway, subject to the public easement for navigation, the riparian owner had the right to bridge it, or dam it, or do any other act which the riparian owners upon streams not navigable could do, and to enable him to do so he needed no act of the legislature. (Chenango Bridge Co. v. Paige, 83 N.Y. 178; 38 Am. Rep. 407.) If he put in or over the river any thing *Page 129 which obstructed its use as a public highway, the public, or any person specially injured in the use or attempted use of the river as a highway, could proceed against him. Here the public do not complain of the dam, and there is no allegation or proof that the defendant desired to use the river for navigation, and if he can complain of it at all it is only as a navigator. If he is injured in any other way or in any other capacity it is damnum absqueinjuria. (Fort Plain Bridge Co. v. Smith, 30 N.Y. 44.)
But this dam, upon the facts found, is in no sense a real nuisance. There is no finding that any one navigates, or desires to navigate, or can in any proper sense navigate, the river. Under such circumstances the dam is not, in a moral or legal sense, such a nuisance as calls upon a court of equity to deny the plaintiffs relief as against the defendant. He is estopped from denying that, as against him, they have the right to the water which was reserved. He cannot draw for his grist-mill water which was reserved for the factory. Having done so he perpetrated a wrong which made him liable in this action.
The counsel for the defendant discusses some questions of fact in his brief submitted to us, but as the evidence is not before us we are concluded by the findings.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.