delivered the opinion of the Court. The decision of the present case must depend exclusively upon the construction of the contract entered into by the plaintiff, with Allen Pease, the defendant’s father and grantor, on the 30th of January, 1809. It is conceded, that up to that time, Ashley, the plaintiff, was the exclusive owner of the land on both sides of the stream, together with the whole of the water privilege, that he retains all the rights incident to such ownership to the present time, except such as he parted with by this contract, and that Harlow Pease, the defendant, has new all the rights which were conveyed to his father by that contract. Nor will the doctrine relative to the legal rights of riparian proprietors, go far to aid the construction of the contract, because admitting, that by the terms of the grant of land, the grantee became such a proprietor, that is, an owner of land bounding on the stream, (which is denied,) such general tight is limited, restrained, and regulated by the terms of the contract. Presumptions are resorted to, as a means of ascertaining the intentions of parties, whenever they have not expressed them with sufficient clearness. But conventio legem vincit. Genera ownership embraces the right to use the whole of the water power, to every extent and for every purpose to which it can be legally used. If having thus the unlimited jus disponendi,
One other observation it may be proper to make, before proceeding to the direct question, on the construction of the contract. Here two instruments of the same date were executed by the parties, differing a little in their terms. These were manifestly executed at one and the same time, and relate to the same subject matter, and they must therefore be taken and construed together ; every stipulation, covenant, and clause contained in either may be resorted to, to ascertain the meaning of the parties. The effect will be, that general words in one, will be limited and qualified by more special stipulations in the
It may be proper to advert to some rules of construction, applicable to the grants of water powers. In general, where a mill-seat is granted, that is, land on a stream on which mills are actually situated, or where it appears by the grant, that the object is to erect mills thereon, the soil is the principal subject of the grant; the right to use it for any and all mill purposes at the pleasure of the owner, and to change those uses at pleasure, follows as incident to the ownership ; and words of description of the water power, such as the right to use the stream, for the saw-mills and grist mills, &c., situated, &c., are not to be considered as restrictive of the more general right, incident to the ownership.
Again, where the grant is of a water power, in terms, described, and where the privilege itself is the principal subject, 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 will be more favored, because in general it is most beneficial to the grantee, by allowing a latitude of choice in the use he shall make of it, without being more onerous to the grantor, and therefore most consistent with the general rule applicable to the construction of grants, and because such con
Still, for the reasons already given, it is competent for the owner of the whole of a mill privilege to grant a part, and any part which he pleases, and for the grantee to accept such part, and of course it is competent to grant the right to use water for the purpose of carrying a particular species of mill and no other. And the question in this case is, whether it was a grant of water enough to carry a fulling mill, to be applied by the grantee to carry a fulling mill, or an oil-mill, or other works requiring equal power at his pleasure, or whether it was a grant of a right to draw water to carry the fulling mill only, and restricted to that use. The Court are of opinion, that the latter is the true construction of this grant, and that it was intended, not to measure and limit the quantity of water power, but to restrict the use of the water to the actual purpose of carrying a fulling mill, either the one then standing or some other fulling mill to be erected at the same place. This seems to us to be the natural and obvious import of the words of the grant used in the contract, and this construction is confirmed by all the other provisions of the contract and by all the attending circumstances.
Ashley covenants for himself, and his heirs, with Pease, his assigns, &c., that they will, at all times, when there is a suffi ciency of water to supply all the mills now standing, or which may be standing in their places, suffer and permit Pease and his assigns to draw so much water as may be necessary to carry and supply the fulling mill of Pease which now stands, or which may hereafter stand on the same spot, but when there is not such sufficiency of water, Pease and his assigns are to draw from the floom, for the use of the fulling mill or mills, twelve hours successively in the twenty-four hours and no more. The clause is nearly the same in the other instrument, except that the words “ or mills” are not inserted, hut the language is that Allen and his assigns are to draw water from the floom, for the uses of his or their fulling mill as aforesaid, twelve hours, &c. This was a perpetual grant, not therefore limited to the idemical mill then standing, which must decay, but any and all
On the best consideration we have been able to give to this grant, the Court are of opinion, that it was the grant of a right to use the water for driving the fulling mill, and for no other purpose, and that the use of it to carry a carding machine, was unauthorized, and has subjected the defendant to an action.