Rock Manufacturing Co. v. Hough

This case is controlled by the contract entered into between the petitioners and the respondents’ grantors, respecting the building of the reservoir for the purpose of furnishing the respective parties to the contract a constant supply of water to run their several mills.

The controversy in the case is confined to the rights of the parties under the contract in the dry season of the year, when all of the parties depend upon the waters of the reservoir to operate their mills. It appears in the case that the waters of the reservoir, after leaving the premises of the respondents, descend so rapidly that the ponds of the petitioners are not adapted to receiving and ponding the water for a supply, but they are adapted, and can be adapted, only to raising a sufficient head of water, while the supply is constantly being furnished, and can only be furnished, by the waters as they flow rapidly down from pond to pond. This was well known to the respondents’ grantors at the time the contract was made and the reservoir constructed.

It further appears that the petitioners, relying on the ca*203pacity of the reservoir to furnish a supply of water under the contract, constructed their works in reference to such a supply, and to the entire capacity of the same.

It appears further that the practice always has been, in the dry season of the year, to draw the water from the reservoir only during the usual working hours of each day, and that such practice is the only one that can be adopted to prevent wasting the water, and to enable the parties to the contract and their privies to use it to the best advantage of all concerned.

It further appears that the pond of the respondents is above the ponds of the petitioners, with but one exception, and is capable of containing a large quantity of water. The remaining facts are stated as follows:

“ The season of 1864 was a dry season, and the water in the stream was low, and ceased to run over the reservoir dam early in May. All the mills on the stream depended upon the water in the reservoir for the power to operate their machinery, and water sufficient to operate the mills and machinery was drawn from the reservoir during the usual working hours of each day, in the same manner that the water had customarily been drawn during similar seasons. The pond of the respondents would be filled during the day, and be kept filled, by the water drawn from the reservoir for the purpose of operating the mills, and would be full and the water would be running over their dam at night, when the gate at the reservoir was closed at the usual hour. After the gate of the reservoir was closed, the respondents would continue to run their mill during the night, so long as the water in their pond furnished a sufficient head to operate the same, and the respondents’ pond would thereby be drawn down, and in the morning when the gate at the reservoir was raised, the water flowing from the reservoir would be detained by the respondents until their pond was filled, and the petitioners would thereby be deprived of the use of the water until the pond was filled, and the water ran over their dam, except so much as was necessary to operate their mill, which did not furnish a sufficient quantity of water to operate the mills of *204the petitioners. So much of the water as was drawn and nsed by the respondents in the night season was wasted, so far as the interest of the petitioners was concerned, and their mills were often compelled to wait for water in the morning, to the serious detriment of their business, until the pond of the respondents could be filled; and the petitioners were compelled to raise the gate at the reservoir at an earlier hour in the morning than they otherwise would have done, in order to fill the pond of the respondents, and thus lessen the time they otherwise would have had to wait for water to operate their mills. In the latter part of the summer and during the fall of 1864 there was very little rain, and the quantity of water in the reservoir was constantly reduced by the water drawn to operate the mills of the petitioners and the respondents, until it finally gave out, and the mills were compelled to remain idle some time for the want of water ; and the water of the reservoir failed sooner than it otherwise would have done, in consequence of the use of the water by the respondents as aforesaid.”

These are the principal facts of the case, and enough to show that the use which has' been made of the water by the respondents, in the dry season of the year, when all the parties to the contract depend, and have to depend, upon the reserved waters of the reservoir to operate their mills, is unreasonable, and is in violation of the real meaning and intent of the contract under which the reservoir was constructed.

It is obvious that the case must be governed by the contract, for it has reference only to times and seasons when there is no water running over the reservoir dam. It is the water that the parties have by virtue of the contract that is' the subject of this litigation; and it is therefore of no importance what might be their rights on a natural stream.

During such seasons we think it behooves the parties to this contract to consult each other’s interests, and use the water only during the usual working hours of each day, when all can use the water to advantage. We think the parties must have so intended when the contract was made. The reservoir was constructed to meet the emergency of such sea*205sons. It could be of no advantage whatever at other times when there is'an abundance of water in the streams flowing over the reservoir dam for milling purposes. The reservoir therefore was intended for times when frugality of its waters would be necessary; and at such times it could not have been intended by the parties to the contract that one of them might use the water during the night, when the others could not use it to advantage, thus subjecting them to the loss of all beneficial use of one-half of the water, and compelling them to remain idle for a time during the working hours of each day, while waiting for the pond of the respondents to become filled.

We think the temporary injunction should be made perpetual ; and we so advise.