Opinion
Argued June 7, 1876
Decided September 19, 1876
Wm. H. Henderson for the appellants.
Obed Edson for the respondent.
The only point properly before this court for review is as to the construction of the grant. The fact that, up to 1872, the defendants drew more water from the spring than would have been drawn through a pipe from the spring to the highway with three-eighths of an inch bore, although the faucet, at the point of discharge, was only two-eighths of an inch orifice; and the fact that subsequent to that time, with the use of a short lead pipe from the spring to the wooden pipe, which had a larger bore, the defendants also drew more water than would run through a three-eighths inch pipe from the spring to the highway, are sustained by the evidence, and the findings are conclusive upon this court. The grant was of "all the water that will run through a lead pipe with a three-eighths of an inch bore, from a spring or well," * * * "with, also, the right and privilege of conveying said water in a lead pipe or wooden pipe from said spring, in a southerly direction, a distance of about fifteen rods to the public highway." The plaintiff claims, and the court below held, that the defendant was restricted to a pipe with a bore of three-eighths of an inch all the way from the spring to the highway. The defendants claim that the first clause of the grant is only a measure of the water authorized to be taken, and not a restriction upon the size of the pipe, and, at all events, that if the size of the pipe at the spring is only three-eighths of an inch, a larger pipe may be used the remainder of the distance.
There is considerable force in the position of the defendants, but looking at the language employed, the object of the parties, and all the circumstances, we are inclined to adopt the construction of the court below, as being more in harmony with what appears to have been the intention of both parties than the other. This construction makes the quantity fixed and certain. It is probable that the grantor intended to restrict the quantity to what would pass through a three-eighths inch bore all the way to the highway, with a view of reserving sufficient to supply amply his own farm. The consideration was merely nominal, and it is evident that it was intended to grant only what was regarded as the surplus. This would be secured more certainly by the construction adopted than by the other. The language of the two clauses bears more naturally this interpretation. When read together, the practical meaning is that the grantee might draw water from the spring to the highway in a lead or wood pipe, with a three-eighths of an inch bore. It requires a critical and technical construction to hold that the size of the pipe was not intended to be restricted, and that the reference to the size was only designed as a measurement of the water granted. Without elaborating the point, we concur with the opinion of DANIELS, J.
The judgment must be affirmed.
All concur.
Judgment affirmed.