Opinion
01-08-1908
CRANE et al. v. McMURTRIE et al.
John J. Harding and Sylvester C. Smith, for complainants. William H. Corbin and Wayne Dumont, for defendant Bamford Bros. Silk Mfg. Co. William H. Morrow and George M. Shipman, for defendants McMurtrie.
Bill by Aline W. Crane and others against George McMurtrie and others. On bill, answers, cross-bill, and answers, to determine quantities and proportions of water, with priorities, of the parties to the suit, flowing through a common raceway. Judgment for complainants.
John J. Harding and Sylvester C. Smith, for complainants. William H. Corbin and Wayne Dumont, for defendant Bamford Bros. Silk Mfg. Co. William H. Morrow and George M. Shipman, for defendants McMurtrie.
PITNEY, Advisory Master. The three parties to this suit, whom I will call for convenience, Crane, McMurtrie, and Bamford, are severally the owners and in possession of three several factories and land surrounding them, situate on what is known as the "upper water power" on the Pequest river, in the borough of Belvidere. Warren county, in this state. Their several factories are driven by power due to a head of about 17 feet of water created by a low dam thrown across that river about half a mile east and upstream from the central part of the town of Belvidere, which dam turns the water into a raceway located nearly parallel and close to the river, in an almost due easterly and westerly direction crossing Hardwick street in that town. This race has its westerly end at a point about 100 feet west of the westerly side of Hardwick street, on land of Bamford, upon which is situate his silk mill or mills. Immediately east of Hardwick street is Crane's mill, used for the manufacturing of felt, which was originally a foundry, known as the "brick foundry." Immediately to the east of that is the grainmill of McMurtrie, originally a sawmill.
The more serious questions presented by the record, and dealt with at the hearing, arise between Crane and McMurtrie, each of whom claim under two different conveyances from the original proprietor. Those questions are as follows: First, what quantity of water, or proportion of the whole, is each entitled to as against the other? And, second, what priority has either over the other in drawing water from the common source, the raceway, in case of a scarcity or insufficiency to supply both? These questions, though arising out of the same documents and circumstances, are quite distinct from each other, and will be considered separately. I will consider the question first above stated, namely: What quantity of water or proportion of the whole is each entitled to as against the other?
The common source of title is, of course, the original proprietor of the water power, and in this case of the lands adjoining the raceway and between that and the Bequest river. Those proprietors, for present purposes, may be properly said to be the late James W. Wall, of Burlington, N. J., and his sister, the late Mrs. Maria M. Vroom, wife of ex-Governor and Chancellor Peter D. Vroom, of Trenton. They seem also to have been the owners of two industrial plants using power furnished by the raceway, namely, that belonging now to Mrs. Crane, and that belonging to the McMurtries. In that state of affairs, in August, 1850, they conveyed to the Belvidere Manufacturing Company, the predecessor in title of Bamford, a lot of land on the west side of Hardwick street, lying between Front street (which extends westerly at right angles with Hardwick street) and the request river, 186 feet on Front street and about 250 feet thence to the river, "together with 300 inches of water under a 2 1/2-foot head, to be taken out of the raceway of the parties of the first part running through the above-described lot; the parties of the second part binding themselves, their successors and assigns, to pay their proportionate part of the expense of keeping up in good repair the dam and raceway by which the water is brought down." By a deed made two years later, July 4, 1852, the same parties conveyed to the same company a strip 10 feet wide on the west side of the land conveyed by the first deed, making their frontage on Front street nearly 200 feet. A map made in 1854, after those deeds, shows the raceway terminating on the lot so conveyed 170 feet westerly from the side of Hardwick street, so that it did not cross or extend beyond the westerly line of that lot conveyed to Bamford's predecessor in title. As before observed, it at present stops about halfway across the Bamford lot. Under this conveyance to Bamford's predecessors in title it is admitted that he was originally, and presumably is now, entitled to be first served with the amount of water, whatever that amount may be, designated by the language used "300 inches under a head of 2 1/2 feet." The mode in which that shall be measured to Mr. Bamford is the only matter in which he is interested.
In 1854 the proprietors, Wall and Vroom, procured to he prepared and printed a map of the town of Belvidere showing, as is supposed, all the streets and buildings and water powers then in existence. It purports tohave been prepared by William C. Howell, of Trenton, and is entitled, "Plan of Town Lots at Belvidere the County Town of Warren, Showing the Property Belonging to James W. Wall and Peter D. Vroom, Esqs.," with this addition: "The Pequest creek furnishes as fine milling power as any in the county; fall of water at present in use by the company, seventeen feet and nine inches; fall of water above upper dam, not in use at present, fourteen feet. Water at the lowest time ever known, eight hundred and fifty inches under two-foot head; generally twice as much." I infer that the "seventeen feet and nine inches head at present in use" by the company referred to the Belvidere Manufacturing Company, grantee under the deed of 1850; and on the map on that lot is placed a building called the "cotton factory." On that map, on the east side of Hardwick street, also appears the old foundry (at present owned by Mrs. Crane), with a raceway or flume leading to it from the main raceway located immediately on the edge of Hardwick street. And next on the east of that building appear two smaller buildings, each shown by the map to be supplied with water from the main raceway, which was afterwards called the "sawmill lot," and now "McMurtrie's grain mill."
The next conveyance after that to the Belvidere Manufacturing Company (Bamford) is by Wall and Vroom and their wives, October 7, 1854, to Hawley, Beatty, and Hoag, which is one of the sources of the title of Mrs. Crane, and describes a lot on the east side of Hardwick street 125 feet front on Hardwick street, and about 35 or 40 feet deep towards the sawmill, with this addition: "Being the premises on part of which the brick foundry is located." This lot did not touch the raceway, but between it and the raceway was a wagon road, as well as one on the north side. The map and deed show that across the intervening space between the foundry lot so described and the raceway was a branch of the raceway carrying the water in an open, unobstructed raceway or flume from the main raceway to the foundry; also on the land of the grantors, on the south side of the raceway, opposite the foundry, a bridge existed, according to the map of 1854, leading from the south side to the north side of the raceway; and, strange to say, while a bridge is shown on the map crossing the creek or river in the center of Hardwick street, none is shown crossing the raceway, so that, so far as appears by the map of 1854, persons passing northward from the central part of the town up Hardwick street and desiring to cross the raceway were obliged to turn out of the line of Hardwick street and cross this narrow footway into the small block of land between the raceway and the foundry lot, which was not included in the conveyance.
Next to the conveyance of the land, as above quoted in the deed to Hawley, Beatty, and Hoag, comes the conveyance of the water right, as follows: "Together with 100 inches of water under a 2-foot head to be gauged by an aperture to be fixed by the party of the first part at their own proper costs and expenses and to be taken out of the raceway of the party of the first part opposite the south end of the aforesaid lot, it being agreed and understood between the parties to these presents that, as between them, the whole quantity of water is to be estimated at 800 inches under a 2-foot head; and if at any time the quantity of water should be less than that amount, the parties of the second part, their heirs and assigns, are to use only their proportionable share, namely, one-eighth, and the parties of the second part, for themselves, their heirs and assigns, covenant and agree to and with the parties of the first part, their heirs and assigns, to pay their proportional share, namely, one-eighth, of all sums that may be necessary or proper for keeping up and keeping in good repair the dams and raceways, with their appurtenances, by which the water is brought down." Then follows a reservation of the right to the parties of the first part to enter on the raceway for certain purposes. Then follows this covenant: "And the parties of the first part covenant and agree not to put up any erection or building between the south side of the above-described lot and the raceway, but that the same shall be kept open and free, so as to give the parties of the second part free access to the said south side of their lot." It is proper to observe here that the mode of measuring the water to the consumers is changed in this deed from that to the Bamford mill, the latter being so many inches under a 30-inch head, and that to Crane's predecessors being under a 2-foot head; and I think it fairly inferable from the subsequent conveyances that the parties then supposed that the 300 inches conveyed to Barnford's predecessors in title would amount to about 400 inches under a 2-foot head.
The next conveyance in order of time was that made by Wall alone to McMurtrie, dated October 17, 1861. (At this time the foundry lot was owned by one Johnson.) That deed describes a lot of land and premises, commencing by its description on the side of Oxford street, which meets Hardwick street south of the raceway at an acute angle, and, running from that point to the eastern line of Hardwick street, proceeds: "Thence, second, north 100 1/4 degrees west" (meaning 1 1/4, degress west), "crossing the raceway and a public road and passageway, 118.4 feet to the corner of John J. Johnson's land" (Crane), "upon which the brick foundry stands; thence, third, along Johnson's lot north 88% degrees east 40 feet, crossing the headrace leading to Johnson's foundry; thence, fourth," etc. The second line above described, though not so expressed, clearly runs along the easterly side of Hardwick street, and, as it expresslydeclares that it crosses the raceway and a public road and passageway it seems clear enough that "the public road and passageway" must have been between the foundry lot and the raceway, and to have been on the very land which the grantors had previously covenanted they would make no erection. This conveyance was of the equal undivided one-half part of the land. Then follows, in this deed to McMurtrie, the grant of the water right, in the following words: "Together with the undivided half part of 200 inches of water under a 2-foot head, to be gauged by an aperture to be fixed and taken out of the raceway passing through said lot, excepting and reserving out of said lot and premises the said race, which passes through said premises, about 20 feet wide, and also the easement or roadway between the said race aforesaid and the front of the foundry building, and between the race and the sawmill which is located on the said premises, and also the easement and road which passes through said premises north of said sawmill, with the full understanding that said road as it now exists, passing in from Hardwick street in front of said sawmill and foundry, and also passing around in the rear of said sawmill and foundry and out into Hardwick street again, is not to be blocked up, but to be kept open for the passing of horses and wagons to pass around the buildings and said premises, and for the accommodation of the adjoining premises and the public, forever. And it is further understood and agreed by the parties that the whole quantity of water in the water power of the Pequest creek is estimated at 800 inches of water under a 2-foot head; and that the undivided half part of the 200 inches of water hereby conveyed is subject to the rights conveyed heretofore to the Belvidere Manufacturing Company, and if at any time the quantity of water in said water power should be less than 800 inches of water, only the undivided half part of the two-eighths of the balance of the water, which remains after the manufactory aforesaid has received the quantity to which she is entitled, shall be used at the said mill by virtue of this deed; and also that the said McMurtrie is to pay the half part of the two-eighths of all sums that may be necessary or proper for keeping up and in good repair the dams, banks, and raceway, with their appurtenances, by which the water is brought down into the reservoir and let out of said raceway, as may be determined by a majority of the owners of said water power or those who have rights therein."
The next conveyance in point of time is a deed made by Wall and wife to John J. Kline, dated February 5, 1867. Kline at that time was the owner of the brick foundry lot (now Crane's). That conveyance grants to Kline a tract of land immediately west of the Bamford lot, fronting on Front street and running back to the Pequest river; and the description commences in this wise: "One undivided one-half or moiety of all those two certain tracts of land, and the one undivided one-half of 200 inches of water under a 2-foot head, to be gauged by an aperture to be fixed and taken out of the raceway through any land which the said party of the second part now owns or may acquire by this conveyance; the said water being part of the water of what is known as 'the upper water power' in said town of Belvidere." Then follows a complete description of the lot of land conveyed, and some reservations of rights not important in this connection. Then follows this clause: "And it is further understood and agreed by the parties that the whole quantity of the water power of the Pequest creek is estimated at 800 inches of water under a 2-foot head, and that the undivided half part of the 200 inches of water hereby conveyed is subject to the rights conveyed heretofore to the other parties who have become owners of portions of said power; and, if at any time the quantity of water in said water power should be less than 800 inches of water, only the undivided half part of the two-eighths of the balance of the water which remains after the Belvidere Manufacturing Company has received the quantity to which it is entitled shall be used by the party of the second part by virtue of this deed; and also that the said party of the second part is to pay the half part of two-eighths of all sums that may be necessary or proper for keeping up and in good repair the dams, bank and raceway, with their appurtenances, by which the water is brought down into the reservoir and let out of said raceway, as may be determined by a majority of the owners of said water power or of those that have rights therein." It is noticeable that, while the grant is made subject to all previous grants, it is in substance expressly declared that the grantee shall have one-half of the two-eighths of the water which remains after the Belvidere Manufacturing Company (Bamford) has received its portion.
By a subsequent deed of partition between Vroom and wife and Kline, dated April 4, 1871, the parties made an actual partition between them of the lands, the undivided one-half part of which was conveyed by Wall to Kline, by the deed first above recited. The deed then proceeds, reciting the conveyance by Wall to Kline of the undivided half of 200 inches of water, and the right of Mrs. Vroom to the use and flow of 200 inches of water, etc., and witnesses "that the said John J. Kline, his heirs and assigns, shall have and enjoy the use and flow of 100 inches of said water, to be taken, used and gauged as mentioned in said deed, without any lot or interference of the said Maria M. Vroom or the said Peter D. Vroom, her husband, or either of them; and in like manner it is agreed that the said Maria M. Vroom and her said husband shall have and enjoy the use and flow of 100 inches of water, to be taken, usedand ganged as aforesaid, without any let or interference of the said John J. Kline, his heirs or assigns. And the said parties do severally covenant each with the other and their heirs, executors and administrators that they may forever hereafter have, hold and enjoy the separate use and flow of said water in manner aforesaid; that is to say, that each party shall be; entitled to the use of 100 inches thereof free and discharged from all right and interest of the other party in and to the use of the same and of all incumbrances upon the same done or suffered by either." By this conveyance Kline became seised, as claimed, of the right to take 100 inches. By subsequent intermediate conveyances from Kline his right to take this 100 inches of water was conveyed to Mrs. Crane, as hereinafter stated.
I stop here to say that McMurtrie, who claims to have acquired the residuary right of Wall and Vroom in the whole water power, contests the title of Mrs. Crane to this 100 inches on the ground, among others, that nothing could pass by the two conveyances to Kline, made by Wall and Vroom and wife, because Kline was not, at the time of the conveyance or at any time afterwards, the owner of any land through which the raceway passed; that the foundry lot, now Crane's which he then owned, did not touch the raceway; and that the lot which he purchased on Front street with the water right did not touch it. And, further, they contend that, if it were possible to give the conveyances from Wall and Vroom and wife to Kline the force claimed for it by Mrs. Crane, it was not in the power of Wall and Vroom and wife to impose upon the little strip of land between the Crane foundry lot and the raceway, in which McMurtrie then had an undivided interest, the burden of an easement of carrying an additional 100 inches of water. I wish merely at this point to remark that the question whether, as between Wall and Vroom on the one part and Kline on the other, the two deeds were sufficient to pass any title to the water, and the question whether Wall and Vroom could impose an additional burden on land of which one of them had previously conveyed an undivided interest to McMurtrie, are quite different and distinct, and are to be solved on different considerations.
The next deed in order, in this connection, was made by Kline to Edward J. Vanuxen, dated January 1, 1875 (Vanuxen then being the owner of the Crane foundry lot), and conveys the land on the west side of Hardwick street conveyed to Kline by Wall and Vroom, and with it 100 inches of water; and on April 1, 1891, Vanuxen reconveyed this property, with the 100 inches of water, to Kline's executors and trustees, and the survivor of them conveyed it to the Belvidere Co-operative Improvement Company June 15, 1898, and that company conveyed it to Mrs. Crane on August 1, 1899.
To go back to the title of the foundry lot. After the purchase by Kline from Wall in February, 1867, of the half of the 200 inches of water, and before the partition deed of Kline with Mrs. Vroom of April 4, 1871, to wit, August 1, 1867, Kline conveyed the foundry lot to Vanuxen and Uhler, with the 100 inches of water originally conveyed with that lot; and on October 0, 1891, Vanuxen, having acquired Uhler's interest (and after he had conveyed the property derived through the deed from Wall and Mrs. Vroom to Kline to Kline's estate), conveyed the original foundry lot and the 100 inches of water conveyed with it to Mrs. Cooper; and on March 16, 1893, Mrs. Cooper conveyed the foundry and 100 inches of water to the Belvidere Co-operative Improvement Company, who subsequently conveyed to Crane, the complainant.
The evidence satisfies me that the Belvidere Co-operative Improvement Company in 1893 leased the foundry lot to Mrs. Crane for a factory; that that company also leased from Kline's estate the use of 100 inches of "water, one-half of the 200 inches originally conveyed with the Prospect street property west of Hardwick street, and that that company immediately relet the same to Mrs. Crane, and that the enjoyment of this last-mentioned 100 inches of water by Mrs. Crane, as the lessee of the Belvidere Co-operative improvement Company, commenced at that time, and was the whole property which was finally conveyed to her in August, 1899. Whether this 100 inches of water had been enjoyed by any of the previous owners of the foundry lot will be considered further on. The title to the remaining interest in the water power, and to all the lands not previously conveyed, subsequently became vested in McMurtrie.
As to Mr. Wall's undivided half interest in that property, whatever it was, the conveyance to McMurtrie was effected by means of a foreclosure of a mortgage put upon the premises (shortly after the conveyance of 1850 of the Bamford tract) by Wall and Vroom to John Maxwell Brown. It is quite apparent that the sole object of the foreclosure of this mortgage was to acquire the title to the remaining interest of Wall. The details of the arrangement of the foreclosure proceedings which produced that result are not shown; but the conveyance itself by Master Wilson is expressly confined by its terms to Wall's one-half, and expressly excepts the lands now owned by Bamford, and those owned by Crane, and those conveyed to Kline, and the interest conveyed by Wall and wife to McMurtrie. The interest of Mrs. Vroom, who had survived her husband, passed directly from her by deed to McMurtrie in September, 1877.
During all this time, and up to the month of June, 1904, no attempt was made by either Wall or Vroom, or their successor, McMurtrie, to admeasure the waters to either Bamford, or to Crane's predecessors in titleto the foundry, or to McMurtrie while he owned the undivided interest in the sawmill lot Each one helped himself by the use of his appliances at hand as he saw fit. The foundry and sawmill lots were each undoubtedly furnished with appliances for drawing water before they were conveyed by Wall and Vroorn to the predecessors in title of Crane and the McMurtries. Bamford's predecessor probably arranged his own mode of drawing water. In or about the year 1877, while the Crane property was owned and occupied by Vanuxen, and after McMurtrie had purchased a complete title and entered into possession, and after he had erected a new grain mill on the premises, he complained that the old branch raceway, then composed of planks, which carried the water from the main raceway to the foundry building, leaked and allowed water to reach his mill, to his damage. The then owner of the Crane mill thereupon tore out the old trunk or branch raceway, and inserted in its place beneath the surface of the earth a cast-iron tubular trunk or pipe, 30 inches in, diameter, to carry the water to his wheel. That pipe is still in use. It was inserted and placed in full sight of McMurtrie, and apparently with his full acquiescence.
Kline, as we have seen, owned the Crane foundry lot from January 1, 1867, to August 1, 1807, seven months, when he conveyed to Vanuxen and Uhler. Vanuxen, either alone or jointly with Uhler, held the title and occupied the premises from August 1, 1867, to October 6, 1891, a period of 24 years. A witness was examined who swears, without contradiction, that he worked for Vanuxen for 20 years on those premises, and that Kline, before the title was transferred to Vanuxen and Uhler, removed the old wooden water wheel, and inserted in its place an iron wheel of the turbine form, which remained there during all the time that Vanuxen owned the mill. The evidence clearly establishes that this was what was known as a "23-inch Leffel standard wheel," and that according to the tables it consumed 802 cubic feet of water per minute under the head there in use, said to be 16 feet. This quantity, it seems pretty clearly, is quite as much, if not more, than would be supplied by an aperture of 200 inches square under a 2-foot head of the oblong shape which seems to be conceded was proper to be used as a gauge in measuring this water. During that 24 years, so far as the evidence shows, Mr. Vanuxen used from time to time, and whenever he needed it and chose to do so, the full power of his wheel. In 1893 this standard Leffel was displaced by a special Leffel wheel, which used nearly or quite twice as much water as the former wheel; and that was used constantly by Crane until 1902, when she put in an additional wheel, taking its water through the same tubular pipe, and with that additional wheel operated additional machinery. It is quite clear that Crane used the new special Leffel wheel to its full capacity from 1893 to 1902, and that from that time on they used two wheels; and the proof on the part of McMurtrie is that no serious injury was felt, and no complaint made against Crane, until 1902, after the second wheel was put in. It thus appears that from 1867 to 1891, a period of 24 years, the Crane mill was operated with a water wheel which was capable of using, and did, as often as the owner required and desired, actually use, at least the equivalent of 200 square inches of water under a 2-foot head; that the mill was little used from 1891 to 1893; that then a wheel of double the size of the preceding one was put in and operated, without objection, to its full capacity up to 1902.
Upon these facts now let us turn to the proper construction, or rather effect, of the deed of 1867 from Wall to Kline, and the release in partition in 1871 from Mrs. Vroom to Kline. It is quite clear that both Wall and Vroom intended to convey the 100 inches of water to Kline in perpetuity, and to give him the right to take that water out of the raceway at some point; and the presumption is that they received full cash compensation therefor. The consideration mentioned in Wall's deed is $2,000, and the deed bears $2 in revenue stamps. The effort of the court should be to enforce the rights intended to be conveyed against the grantors and their assignees. It is a proven and an admitted fact in the case that neither at the time of the giving of the deed nor at any time afterwards did Kline own any land bordering on the raceway. Neither the foundry (Crane) lot nor the lots conveyed with this 100 inches of water touched the raceway. To hold, then, as the defendants contend, that the actual passing of the interest in the water depended upon Kline's owning any land through which the raceway passed, would render it entirely nugatory. That construction ought not to be adopted, unless there is none other that will answer the language of the deed. My own belief about it is that, at the time the deed from Wall and wife was made, the fact that the Crane foundry lot did not actually touch the raceway was not known to, or thought of by, the parties. The deed to Kline is in the handwriting of the late James M. Robeson, and, so far as appears, did not pass under the supervision of Gov. Vroom. Whether the parties knew, as a matter of fact, that the westerly end of the Bamford tract stopped considerably short of the land actually conveyed in the Wall deed, does not appear. And the same remarks apply as to the first tract; for the foundry lot did not touch the raceway. Manifestly Kline had a right to suppose that, if he wished to take this additional flow of water to his foundry, he could take it through the same raceway as was then supplying it; and he may have thought that he might wish to establish anentirely new power on the lot conveyed next west of the Bamford lot, and may have thought that he would have no difficulty in getting the raceway extended to that lot, if he did know that it did not at that time reach it. My own explanation, or rather interpretation, of Kline's thought, was that he was acquiring the right to take the 100 inches of water from either point which he might thereafter choose—that is, either the foundry lot or the lot next west of the Bamford lot.
But then, say the defendants, Kline sold away the foundry lot to Vanuxen and Uhler, conveying with it expressly the original 100 inches of water annexed to that lot; and subsequently, in 1875, while Vanuxen was the owner of the foundry lot, Kline conveyed to Vanuxen the lot purchased by him from Wall and Vroom west of the Bamford lot, with the 100 inches of water originally conveyed to him by Wall and Vroom, as hereinbefore stated, and thereby separated the last-mentioned 100 inches of water from the foundry lot; and Vanuxen, in April, 1891, reconveyed to the estate of Kline the lot of land so previously conveyed to him west of Bamford, and that particular 100 inches of water, thereby ratifying that severance, and later on, in October, 1891, he conveyed the foundry lot and its 100 inches of water to Cooper; and then later on the estate of Kline, as we have seen, conveyed it to Crane's immediate grantor, the Belvidere Co-operative Improvement Company, who had in the meantime purchased the foundry lot from Cooper. These conveyances, so McMurtrie contends, had the effect of absolutely destroying the right to take the 100 inches of water. This position is based on the ground that the right to take the water was a pure easement, which can only be taken and held as an appurtenant to some dominant tenement; and, argue the defendants, if the right to take the 100 inches of water ever passed from Wall and Vroom to Kline, it must have passed as an appurtenant to some piece of land, and, once fastened to that piece of land, it could not be transferred to another piece of land at the will and pleasure of the original grantee or his assigns.
The rule of law just stated seems to be quite clear and well-established as to a pure easement, such as a right of way and the like, but should not be applied, except in a clear case, and, if possible, should be so applied as not to work manifest injustice; and, as it now arises in a court of equity, I find no difficulty in so applying it here. In the first place, the parties manifestly treated it as a right which might be transferred from one piece of property to another, and, moreover, in my judgment, did not consider or treat it as a pure easement, but as having and possessing the nature of a profit a prendre, which may or may not be annexed as an appurtenant to a particular piece of land, and may become an estate in fee simple. That was, in substance, all that was decided in the recent case of Mitchell v. D'Olier, 68 N. J. Law, 375, 53 Atl. 467, 59 L. R. A. 949. The possibility in the law of holding water rights of this nature as heritable estates, separate and free from any particular dominant tenement, is thoroughly established in a long line of cases in Massachusetts, which have been followed to a greater or less extent in some other states. I shall not attempt to cite and abstract these decided cases, which were fully discussed by counsel in their elaborate printed arguments, but will content myself with saying that their reasoning meets with my approval, when applied, as here, to an explicit written grant. Moreover, I think on plain principles of equity that Wall and Mrs. Vroom, and their assignee, McMurtrie, are clearly estopped in equity from denying that the complainant, and those under whom she claims this 100 inches of water, are entitled thereto at some point on the raceway.
But it is urged that the language of the grant can be satisfied by holding it as tantamount to a license and no more, and giving it effect during the life of Kline and no farther. I am unable to accede to that argument. I am unable to treat this grant as a mere license—such as a right to hunt or fish or walk across land—personal to the grantee. Manifestly the expectation of the parties was that money should be expended in permanent improvements on the strength of the grant, and that it should become part and parcel of an estate in fee simple, and an attempt to reduce it to an estate for life approaches the absurd. Besides, the conveyances show that the original conveyance of the Crane lot in 1854, and the conveyances from Wall and wife and Vroom and wife to Kline, provide that as owners of these 100 inches of water they should severally pay a share equal to one-eighth of the cost of maintaining the dam and raceway. I shall have occasion to refer to this language more particularly hereafter. It is enough at this moment to say that 100 inches, for the purposes of keeping up the repairs, was called one-eighth of the whole, and McMurtrie, as the owner of the residue, was by the terms of the contract confessedly entitled to see to these repairs, and apportion the expense among the owners, and collect the same from them. At least he certainly assumed the right to do it.
Now, we have seen that in April, 1891, Vanuxen conveyed his 100 inches, bought by him from Kline, to Kline's estate, and in October, 1891, conveyed the foundry and 100 inches of water to Cooper. In March, 1893, Cooper conveyed to the Belvidere Co-operative Improvement Company the foundry and 100 inches of water. Shortly afterwards that company leased from Kline's estate the right to use this 100 inches of water, and leased the foundry and this 100 inches of water, making 200 inches in all, to Crane, who occupied it as their lessee until 1899, when, having procured the title of the 100inches from Kline's estate, the Belvidere Cooperative Improvement Company conveyed to Crane what Crane had previously leased from the company. Now, on May 11, 1893, and before he knew of the lease by Kline's estate to the company, McMurtrie rendered a bill to the Belvidere Co-operative Improvement Company for $49.99 for "one-eighth repairs on mill pond," and that was paid to him by the company on June 9th. On the 5th day of December, 1893, and after Crane had taken possession as lessee and was using the two-eighths, McMurtrie rendered another bill to the company for "two-eighths of the repairs on the dam, $234.16," and that was paid to him by the company on February 10, 1894. From that time on—September, 1895, or October, 1895—McMurtrie rendered bills to the company at the rate of one-quarter or two-eighths for the expense of repairs. In August, 1899, after the purchase by Crane, McMurtrie rendered a bill to her for two-eighths of the repairs to the dam, raceway, etc., $208.45; and again in 1903, 1904, and 1905, after this suit was brought, bills were rendered to Crane for one-quarter of the expense of keeping up the dam and raceway, Under these circumstances I am unable to see how it is possible for McMurtrie to escape being charged with having recognized the right in equity of Mrs. Crane to the quantity of water claimed.
There remains to be considered on this part of the case the point taken by the defendants that Wall and Vroom had no right to increase the burden of the easement resting upon the small strip of land between the raceway and the foundry (Crane) lot, of which I have heretofore spoken. At the time that the conveyances were made by Wall and Vroom to Kline, the title to an equal undivided half of that strip of land had been conveyed by Wall to McMurtrie; but the strip itself was manifestly subject to the easement of the trunk or headrace then in existence. That passed as an appurtenant when the conveyance was made by Wall and Vroom in 1854 to Hawley, Beatty, and Hoag, and was visible on the ground. The strip itself was subject to an additional easement of a public roadway leading from Hardwick street along the north side of the raceway to the sawmill or McMurtrie lot, and this roadway easement was especially reserved in the most sweeping and explicit terms in the conveyance from Wall to McMurtrie; so that it is manifest, from all the conveyances, that the mere legal title to that little piece of land was not esteemed to be of any value. Then in 1877 or 1878, as we have seen, the old wooden trunk previously in use there was displaced by the present cast-iron tubular trunk, and that has been acquiesced in ever since, with full knowledge by McMurtrie. Under these circumstances no complaint can be made of the structure there crossing that strip of land. The cardinal defect, however, in the defendant's position in this behalf, is that it attempts to measure the extent and burden of the easement by the quantity of water running through this conduit. This I conceive to be inadmissible, and it was so held by the Supreme Court, speaking by the late Mr. Justice Dixon, in Slingerland v. Newark, 54 N. J. Law, 62, at page 69, 23 Atl. 129, at page 131, where he says: "Under these circumstances it is not apparent how the prosecutor can have any legal concern with the quantity of water drawn through the aqueduct, or the use of so much of it as the public does not need." And that principle was adopted by me in Northeastern Telegraph & Telephone Company v. Hepburn (N. J. Ch.) 65 Atl. 747, at page 749. The true rule is that the measure of the burden of the easement is the size and character of the conduit placed upon the land, and not the quantity of water passing through it. The case is in marked contrast with that of a right of way, where the injury to the servient tenement by its exercise varies with the. character and frequency of its use. In the present case the injury is the same, whether much or no water passes through it.
The more serious and troublesome question is as to the proper mode of dividing this flow of water of the stream between the three parties, Bamford, Crane, and McMurtrie. The several deeds provide for a measurement or gauging of the water by "square inches." Manifestly by this cubic inches was not intended, but a column of flowing water measured by the square inches in a section. But then that would be no accurate measurement, unless the velocity of the flow is determined. Water is measured for hydraulic power purposes by the number of cubic feet passing in a second or minute, and this is determined ordinarily by ascertaining the size and velocity of the moving column of water; and, unless the column is moving in a vacuum, it is always subject to retardation at the sides or edges by friction. The central portions ordinarily move more rapidly than the exterior. Two matters are necessary—the size of the moving column and its velocity. In this case the size of the column is given in square inches, without mentioning its shape, whether circular or rectangular, and, if rectangular, whether square or a parallelogram. The velocity is fixed by mentioning the head; in the case of Bamford 30 inches, and in the case of Crane 24 inches. Here, again, the point from which this vertical measurement of head was to be made is not given, whether from the top of the moving column of water or from the bottom. Manifestly much is here left to construction. And the difficulty of the task is increased by the circumstance that prior to the year 1904, an average of 50 years, no attempt was ever made to enforce this part of the contract practically. In that year, after an experience of two years of Crane's using two turbine wheels, instead of one, andtherewith operating an addition to her factory, McMurtrie and Bamford, believing that she was drawing much more water than she ever had done, and more than she had a right to do, attempted to exercise, and did exercise, what they claimed was the right reserved in the original grant of inserting in the side of the raceway opposite Crane's iron trunk a gauge, which provoked this litigation.
The bill was filed by Mrs. Crane against the other defendants, and an answer and a cross-bill was filed by McMurtrie, which prays "that it may be ascertained and actually determined by this court how much of the water belongs to and may be drawn by Crane, and how much by Bamford, as well as how much by the McMurtries, and where and by what methods the same may be drawn by each of the said parties, in what order the same may be drawn, and under what head, and under what shape of aperture, and how the said water should be gauged to the several parties, and that said waters may be gauged under the directions of this court or one of its officers, and the proper aperture, gauges, gates, and appliances may be established and placed for that purpose, and that it may be ascertained and adjudged to whom the surplus water of said water power, in excess of 800 inches under a 2-foot head, belongs, and under what circumstances and under what gauge the same may be drawn, and by whom and where, and that the rights of the several parties may be fully ascertained, defined, and adjudged by a decree of this court." Bamford answered the complainant's bill, and added a cross-bill similar to the cross-bill of McMurtrie, and set out his rights, according to the order of the conveyances, as being first, and made the same prayer in effect as that found in the cross-bill of the McMurtries. So far as I can find, no answer to these cross-bills was filed either by Bamford or the McMurtries; but Crane filed an answer to each one. At the hearing Bamford and McMurtrie united against Mrs. Crane. Mrs. Crane contends not only that by the true construction of the deeds is she entitled to the 200 inches of water, but that she is entitled to one-fourth of the whole, and that this is the practical construction that has been put on these several conveyances for all these years.
Turning to the several conveyances for that particular language, we find the earliest one, to the Belvidere Manufacturing Company (Bamford), dated August 29, 1850, contains this language, after describing the land: "Together with 300 Inches of water under a 2 1/2-foot head, to be taken out of the raceway of the parties of the first part running through the above-described lot; the parties of the second part binding themselves, their successors and assigns, to pay their proportionate part of the expenses of keeping up in good repair the dam and raceway by which the water is brought down." No mode of measuring this 300 inches of water is given, and no provision is made for ascertaining or determining what such proportionate part of the expenses would be. The mode of measuring water by square inches under a head had not been in use for any great length of time at that date. It had been in use by the society at Paterson for half a century, so far as relates to square Inches, but not under any fixed head. The evidence satisfies me that the notion of a fixed head had its origin in the almost universal or very common practice, previous to 1840, of applying water in that way to overshot water wheels. The practice was to arrange for the top of the wheel to be a considerable distance—say one or two feet, or even more—below the level of the water in the pond and raceway when full, then to lift a gate at the end of the trunk an inch, or two, or three, allowing a stream of water to shoot out under the head due to the difference in height between the level of the surface of the pond or flume and the wheel, and so strike or drop into the buckets. That head would be reduced as fast as the water in the pond or flume was drawn down, and the power, if maintained, must be so maintained by gradually increasing the aperture as the water fell, to keep up the flow to the quantity due to the higher elevation. This was a wasteful mode of using water, esspecially in low elevations, as a large part of the head was lost. It would be decidedly a wasteful mode of measuring the water in the present instance, where the fall is only 10 or 17 feet. A certain amount of the power is necessarily lost in, so to speak, getting the water on and off the wheel; and the quantity so lost is precisely the same with a small head and fall as it is with a large head and fall. In the present instance, at least 1 or 2 feet must be allowed for that necessary loss, and a further deduction from that of 2 feet or 2 1/2 feet is a serious matter; and that mode of measuring water has, as I understand the evidence, been abandoned of late years by the best water power companies.
But to return to the terms of the several grants. The next deed in order of time is that of October 7, 1854, to Hawley, Beatty, and Hoag, for the Crane property. That deed, after conveying the property, proceeds: "Together with 100 inches of water under a 2-foot head, to be gauged by an aperture to be fixed by the party of the first part at their own proper cost and expense, and to be taken out of the raceway of the party of the first part," etc. Here it will be observed is the first mention of any actual measurement of the water; but that measurement is not connected with any description of the mode of measurement, except that it is to be by an aperture. The size and shape of that aperture is not given, or that it be under a head; and that lack of description leads, in myjudgment, to an almost ineradicable uncertainty. It does not say that the aperture shall be of 100 square inches' area, although that may or may not be inferred. Nor does it give its shape, as to whether it shall be round or square, or an oblong parallelogram. Now, it is well known that a perfectly round aperture of an area of say 100 inches will carry more water under the same head than a perfect square of 100 inches area, or 10 inches square, and that the latter will in turn convey more water than a parallelogram of a pattern, suggested by the experts and by counsel in the argument, of four or five times in length its height, say 20 inches long and 5 inches wide. This varying result is due to the increase in friction due to the difference in shape. Then the deed does not state where the 2-foot head is to be applied, if it be applied at all; whether at the top, middle, or bottom of the aperture. Then there is another difficulty in applying the actual tost of the aperture under a head, and that is that it is notorious that a plain aperture of a given size, under a given head in the side of a tank or other reservoir with thin sides will not discharge as much water as one with a spout attached of the size of the aperture, and two or three times its diameter in length. Is the aperture here contemplated, through which the water is to be gauged, to be provided with this attachment in order to increase its flow?]
I had the benefit at the bearing of the suggestions under oath of three different and apparently accomplished hydraulic engineers on the true meaning of the language here used, and they do not agree in their solution of it. It is to be observed and kept in mind that the language is not "as much water as will pass through an aperture with a sectional area of 100 square inches under a head of 2 feet." The engineer produced by the complainant puts forward the theory that the true solution of this question of construction is that the language quoted in the complainant's deed requires the delivery of a column of water of a sectional area of 100 square inches, moving at a velocity due or equal to that acquired by a cubic inch of water falling through a vacuum from a height of 2 feet This mode eliminates all retardation by friction, etc. This result he says is easily ascertainable, and is considerably more than the velocity attained by a column of that size passing through a narrow rectangular aperture, such as that proposed by the defendants' engineers, which, as before remarked, is that of the horizontal parallelogram, say five times as long as it is wide, and without any arrangements by way of spouts to accelerate the flow by destroying or counteracting the retarding effect of cross-currents caused by the pressure of the water into the aperture, and which I have above mentioned. But neither of the defendants' engineers agree to that mode of measuring the water in this instance. One insuperable objection to it, over and above the great waste of power due to the loss of head, is the impracticability of maintaining a constant head in the raceway, the surface of which constantly varies with the use of the water. These engineers recommend a mode which I think is practicable, namely, by regulating the size of the turbine water wheels now in general use in the country and in actual use in these factories.
But, before proceeding farther with this matter of measurement, it is necessary to consider another aspect of the case. I have called attention to the difference in the verbiage of the deed to Bamford's predecessor in title and that of Crane's predecessors in title. The first does not speak of measuring or gauging the water, nor does it mention how the share of the expense of maintenance to be borne by the Bamford lot should be ascertained. But the deed of 1854 to Hawley, Beatty, and Hoag for the Crane lot, as we have seen, speaks of the water being gauged, etc., and then in the last-mentioned deed we find this clause: "It being understood and agreed between the parties to these presents that as between them the whole quantity of water is to be estimated at 800 inches under a 2-foot head, and if at any time the quantity of water should be less than that amount the parties of the second part, their heirs and assigns, are to use only their proportionable share, viz., the one-eighth, and the parties of the second part, for themselves, their heirs and assigns, covenant and agree to and with the parties of the first part, their heirs and assigns, to pay their proportional share, viz., the one-eighth, of all sums that may be necessary or proper for keeping up and keeping in good repair the dams and raceways, with their appurtenances, by which the water is brought down." Before considering this language by itself, let us turn to that of the next deed in order of time, which is that of Wall and wife to McMurtrie, dated October 17, 1861; which is as follows: "Together with the undivided half part of 200 inches of water under a 2-foot head, to be gauged by an aperture to be fixed and taken out of the raceway passing through said lot. * * * And it is further understood and agreed by the parties that the whole quantity of water in the water power of the Pequest creek is estimated at 800 inches of water under a 2-foot head, and that the undivided half part of the 200 inches of water hereby conveyed is subject to the rights conveyed heretofore to the Belvidere Manufacturing Company; and if at any time the quantity of water in said water power should be less than 800 inches of water, only the undivided half part of the two-eighths of the balance of the water which remains after the manufactory aforesaid has received the quantity to which she is entitled at the said mill by virtue of its deed." Then follows a covenant on the part of McMurtrie to pay "the half part of the two-eighths of allsums that may be necessary or proper for keeping up and in good repair the dams, banks and raceway, with their appurtenances, by which the water is brought down into the reservoir and let out of said raceway, as may be determined by a majority of the owners of said water power or those who have rights therein."
Comparing these clauses with those in the deed for the Crane lot, some differences will be observed, which seem to me to have some importance, and will be alluded to hereafter. And here again I will refer to the language of the deed from "Wall to Kline, dated February, 1867. There the language of the grant of the water is the same as that in the deed from Wall to McMurtrie, and the deed from Wall and Vroom to Hawley, Beatty, and Hoag for the Crane lot; and it repeats in substance the language of the deed from Wall and wife to McMurtrie, and not that of Vroom and Wall to Hawley et al. It declares generally that the water conveyed is subject to the rights conveyed heretofore to other parties that have become owners of portions of said power, and then is added this language: "And if at any time the quantity of water in said water power should be less than 800 inches of water, only the undivided one-half part of the two-eighths of the balance of the water which remains after the Belvidere Manufacturing Company has received the quantity to which it is entitled shall be used by the party of the second part by virtue of this deed." Now the peculiarity of these two deeds made by Wall to McMurtrie and to Kline, and both subsequent to the deed for the Bamford lot and the Crane lot, is that both of them expressly declare that, in case the quantity of water is less than 800 inches, only the undivided half of two-eighths of the balance of the water which remains after the Bamford property has received the quantity to which it is entitled shall be used by virtue of those deeds, while the deed for the Crane property makes no mention of the deed for the Bamford property, but provides that, if at any time the water in the raceway shall be less than 800 inches under a 2-foot head, the grantees (Crane) shall have their proportionate share, viz., one-eighth of the whole.
The result of these conveyances as to the rights between the parties is that Bamford has the first right to 300 inches under a 30-inch head, and no more. The exact difference of flow due to a 30-inch head over that of the 24-inch head was, I believe, fixed by the engineers; but I will call it, for present illustrative purposes, 350 inches, or seven-sixteenths of the whole 800 inches. Then comes Crane with two-sixteenths, with a slight advantage over the remainder in that, if the water falls below 800 inches in quantity, she is to have one-eighth of the whole flow, and is not confined to two-sixteenths of the balance after satisfying Bamford's private rights. Then Crane, as representing Kline, is entitled to two-sixteenths of what remains after satisfying Bamford. McMurtrie, under his deed from Wall, is entitled to two-sixteenths of what remains after satisfying Bamford and Crane for her first two-sixteenths, and he is entitled to the remaining three-sixteenths under his deeds from Mrs. Vroom and Master Wilson. This shows the complexity of the problem of dividing the water strictly according to the language of these deeds, when it shall fall, as it is liable to do, in quantity below 800 square in ches under a 2-foot head.
But before further dealing with this problem, and before dealing with the distribution of the water when it exceeds, as it usually does, 800 square inches, let us look at another quite serious question which arises on the construction of the deeds themselves. McMurtrie claims all the water over and above that expressly conveyed to Bamford and Crane, or rather to their predecessors in title, amounting to five-sixteenths of the whole by virtue not only of the Wall deed executed to him for two-sixteenths, but also of the deed of Mrs. Vroom and Master Wilson. Against this claim Crane contends that the effect of the conveyance to her predecessors in title is to convey to her four-sixteenths or one-quarter of the whole, and, counting seven-sixteenths for Bamford, to give McMurtrie only five-sixteenths, and, limiting Bamford to the precise measurement provided for in his deed, the surplus should be divided between her and McMurtrie in the proportion of five parts to McMurtrie and four parts to her. For this result she relies upon the language in the deed from Vroom and wife to Hawley, Beatty, and Hoag, heretofore set forth. The original deed from Vroom and wife to Hawley, Beatty, and Hoag is not offered in evidence; but a certified copy of it shows the quotation, as so set forth heretofore, to be all one sentence.
It was stated in argument that this deed was probably prepared by Gov. Vroom, and his great care and accuracy in all his professional business was appealed to and relied upon. The defendants, however, put in evidence a deed 14 years older than that, which throws light on the question to which I shall refer later on. I find, moreover, on examining the deed that it was executed by all the parties in Berlin, Germany, and the probability of Gov. Vroom having with him in Berlin all the material for preparing this deed must be taken into consideration. The deed from Wall to Kline has, as we have seen, a similar provision in it; the language in that deed being, if possible, more explicit, thus: "It is further understood and agreed by the parties that the whole quantity of water," etc., and the same language is used in the deed from Wall to McMurtrie.
Now, counsel for Crane contend that the real meaning of that clause is that, for the purposes of dividing the water up in parcels and to make the conveyances correspond inverbiage with the previous conveyance to Bamford's predecessor, they agreed to consider the whole amount of water running, no matter how great, to be 800 inches under a 2-foot head, and that such view is strengthened by the covenant, in which the words "proportional shares" are twice used. On the other hand, counsel for McMurtrie contends that the whole object of the clause was to fix the proportion that each party should pay towards maintaining the dam and raceway. Against this argument counsel for the complainant urges that there was no necessity or occasion for giving any such reason for fixing the share in the cost of maintenance to be borne by a purchaser of the water rights. All that was necessary, says counsel, was to declare that, "in consideration of the aforesaid grant, the grantees, for themselves, their heirs and assigns, owners and occupants of the granted premises, covenant and agree to pay one-eighth of all sums that may be necessary," etc. For myself, I must say here that I do not think that the clause under consideration shows any signs of accomplished conveyancing, such as one would expect from the pen of Gov. Vroom. I do not think he would have used the words "proportional" and "proportionable" as synonyms in the same sentence.
In further support of their view counsel for defendants refer to the absence of any provision for a division in case the water exceeded the estimated amount, to wit, 800 square inches. To emphasize that argument they put in evidence and rely on a previous deed given by Maxwell and Kern, the previous owners of the property, to Tway and Kenyon, dated April 1, 1840, for substantially the same property as that now owned by Mrs. Crane. The conveyance was made subject to a mortgage for the purchase money, which was subsequently foreclosed, and the title of Tway and Kenyon cut off. Wall and Vroom claim under the foreclosure sale. This deed to Tway and Kenyon contains the precedent and prototype for the language here in question. That was a conveyance of 50 inches of water under a 2-foot head, and the verbiage is precisely the same as in the deed of the Crane lot (1854), except, where the provision is that the grantees are to use only their proportionate share, it says one-sixteenth, and then is inserted the clause relied upon by the defendants, as follows: "And when the water amounts to more than 800 inches they are to be entitled to use the like proportion of the surplus until the whole quantity amounts to 1,200 inches under the same head; but the party of the first part reserve to themselves, their heirs and assigns, the use of all the surplus water over 1,200 inches." Counsel for the defendants rely on the absence of this clause in the deed to Crane's predecessors in title. Counsel for the complainant, in answer to this point, argue that the object of that additional clause in the old deed may well be accounted for by the circumstance that the draftsman thought it necessary or proper to save the grantor's right in all over 1,200 inches; and they argue that without that clause the draftsman felt that the grantee would get one-sixteenth of the whole. But, after all, say the counsel for the complainant, the grantees in the deed of 1854, Hawley, Beatty, and Hoag, had no notice of this old deed to Tway and Kenyon, and are not bound by any construction that may have been put on that deed, and contend that the real question is: What is the force and meaning of the language actually used: "It being agreed between the parties that the water in the stream was estimated at 800 inches under a 2-foot head?" Does or does it not mean that for all purposes it was to be so estimated, and that a conveyance of 100 inches was a convenient way of conveying one-eighth?
After giving the best consideration that I can to the question, assisted by most able arguments, I have come to the conclusion that the construction suggested by the complainant is the better one, and the one more likely to carry out the actual intention of the parties, and is also fully warranted by the language used. I am the more ready to adopt that construction since it avoids the great difficulty of apportioning the waters between these parties strictly in accordance with the language of the conveyances, if the defendants' construction should be adopted. I have already shown how difficult this would be whenever the quantity of water shall fall below 800 inches. But, say the defendants, this construction is inconsistent with the express provision for a gauging of the water. The complainant's answer to that is simple and convincing. In the first place there never has been up to 1904—a period of 50 years—any exercise of the right to gauge the water in the way the defendants claim. Moreover, as before remarked, it is well-nigh impossible so to gauge it, for reasons which I will now state more fully. There is really little or no pondage in connection with this water power. There is absolutely none at the point of diversion, beyond a mere deepening of the natural stream. From that point of diversion, which is at the dam, there is a mere raceway a half a mile long, and at a point about half that distance there is a slight swell in that raceway which perhaps deserves the name of a pond; but it is so small, in comparison with the flow of the stream, as not to be worthy of observation. Then the raceway itself is so narrow that, the moment the water is turned onto the three several mills, the surface falls opposite those mills, in order to give the necessary fall to overcome the friction resulting from forcing a large quantity of water through a narrow raceway. Even in high water it falls six to eight inches without stopping the overflow at the by-wash or at the dam, and in a low run of water, if the mills are running with full work, the water is soon drawn down, up at the dam, a substantialvertical distance below the level of the dam, and a corresponding distance at the mills, falling there one or two feet. This was clearly proven, although no observations had been taken at the dam and at the side wash between the dam and the mills, either before or during the progress of the trial of the cause, as there should have been done. The result, however, is evident, and the application of well-known familiar principles of hydraulics to the circumstances of the case show that the height of the water in the raceway opposite these mills must and does fluctuate seriously from hour to hour and day to day, so that it is quite impracticable to measure the water to these parties in accordance with the mode suggested by the construction of the deeds claimed by the defendants with any reasonable degree of accuracy.
But in my judgment, if the conclusion to which I have arrived is correct, namely, that after satisfying Bamford the remaining water is to be divided between Crane and McMurtrie in the proportion of four to five, I see no difficulty in measuring the water to each by a gauge which will literally and substantially fulfill the requirements of their several deeds. The mode I have in mind is the fixing of ordinary wooden weirs, in the side of the raceway opposite each of their flumes, of a proper length, say four feet long to Crane and five feet long to McMurtrie. and at a depth which may be fixed by experts or by agreement; the top of the weir of each to be precisely the same level and so maintained. Provision may be made for lowering each weir temporarily to suit what may become the exigencies of the case. The gauging or measuring of water by a weir is an old, well-established, and familiar method. Each one will then draw his share at any and all times, without regard to whether the other is drawing any water or not.
Here comes in another matter which received very little attention from counsel, but which I think of considerable importance. Nothing is said in the deeds as to the hours out of the 24 in which this water may be taken. If there was here a large pondage to draw against, it might be said that the usage of the manufacturers in the vicinity ought to govern. But there is no pondage in this case, and, as I recollect the evidence, the proofs, so far as there are any on the subject, tend to show that in the driest weather the raceway and diminutive pond and bed of the stream fill up and water begins to run over the dam very soon after the mills stop. Further, it appeared that it had been the habit at times for the McMurtrie and Crane mills to run well into the night. The practice at Paterson was inquired into. Several of the deeds of water power in Paterson were put in evidence, going back to the beginning of the last century, and in none of them was any provision made about running at night, and I interpret the evidence of Mr. Rossiter and Mr. Watson, old employés of the society, to be that there never was any objection to the mills running at night. My conclusion on this subject is that either party, Crane or McMurtrie, should be entitled to run their mill through the night, provided he does not draw the water below the level of the dam at the point of diversion, or run his mill alone when the water falls below that level. This ascertainment and determination of the relative rights of Crane and McMurtrie ignores the advantage given to Crane by the deed of 1854, when the run of water is less than 800 square inches under a 2-foot head in 24 hours. But this result is unavoidable. The fact is that it is quite impracticable to adopt any plan or means to determine what is the actual flow in cubic inches of the river at any particular moment or on any particular day. The ratio of four to five between Crane and McMurtrie is adopted merely for illustration, and may be corrected by a proper adjustment, thus: Ascertain the amount in cubic feet per second which, according to the rule of the defendant's engineers, will be delivered through such an aperture as they suggest of 300 square inches under a head of 30 inches above the center of the aperture. Ascertain, in like manner, the number of cubic feet to be delivered through a like aperture of 400 square inches under a head of 2 feet above the center of the aperture. Take the difference between these two results, and add that difference to one-half the flow due to the 400 square inches, and the proportion which the sum or result of this addition bears to one-half of the flow due to the 400 square inches, namely, to 200 square inches under a head of 2 feet, will be the proportion between the size of the weir fixed for McMurtrie and that fixed for Crane.
This brings me to the question of the measuring of the water to Mr. Bamford. I have already expressed the opinion that such measurement should be made by means of the turbine wheels used by Bamford. This means is proposed by the engineers of the defendants, including Bamford, and, as before observed, is the only proper and efficient means. The only difficulty is the one heretofore discussed, to wit, how much water— that is, how many cubic feet per second— is meant by 300 square inches under a 30-inch head. The construction claimed by the complainant, and supported by her engineer, Mr. Van Winkle, and called in the argument the "theoretical inch," would give Bamford considerably more water than that claimed by the defendants' engineers, Messrs. Cooke and Smith. I shall not attempt the difficult task of deciding between these conflicting views, but shall adopt the view of the defendants' engineers. This mode of solving the difficulty cannot be objected to by Bamford, as the strongest argument in its favor was made by his counsel. But,while Bamford will be restricted in the quantity used, as above suggested, I think he is entitled to use it for the whole 24 hours, without interruption. I think the contract bears that construction, and I know of no other way under the circumstances, including the absence of any considerable pondage, in which he can receive the full benefit of his grant, namely, 300 square inches under a 30-inch head. I have not overlooked the hydraulic truth that the amount of water delivered by a weir 5 feet long as compared with that delivered by a weir 4 feet long will be a little more than the proportion of five to four. This results from the fact that the loss, due to friction and contraction, at each end of the weir, will be the same in each case; and this must be taken into consideration in fixing the relative lengths of the weirs.
I hope counsel will have no difficulty in making up from the evidence already taken a decree in accordance with the foregoing views. If they cannot agree upon a decree, I will hear them at a time and place to be fixed, and will, if necessary, hear further evidence.