Harris v. Miller Pulp & Paper Co.

If this judgment stands, this defendant will be compelled at large expense to build this dam and construct and maintain gates therein, from which the plaintiff will have equal power and benefit without one cent of contribution to that expense. The mere statement of the fact shows the inequity of the judgment. If plaintiff would share in the water power created by the dam, he should share in the expense which created that water power. In the case at bar the right to'build the dam was granted with water rights reserved. It may be that the defendant has foreclosed itself from demanding any contribution for the building of the dam. In the consideration, however, there was no agreement by which gates should be constructed or maintained for the plaintiff, and I can see no reason, legal or equitable, for imposing this burden upon the defendant. Whatever rights plaintiff may have are his when he makes provision therefor at his own expense. •

And .that provision must be made without unnecessarily crippling the value of the right granted upon consideration to the defendant’s *227grantors. Plaintiff cannot unnecessarily impair the usefulness of the grant. His reservation of the right to use the water is to be construed as a reservation of a right to use it, and not of a right to waste it.

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.