Opinion
06-08-1886
GEORGE W. HELME CO. v. OUTCALT and others.
E. W. Strong, for complainant. Wayne Parker, for answering defendant.
Bill for relief. On final hearing on pleadings and proofs.
E. W. Strong, for complainant.
Wayne Parker, for answering defendant.
RUNYON, Ch. This suit is brought by the owners of the Railroad mills, which are situated on Little Mill brook, in Middlesex county, against John Outcalt and David D. Acker, as trustee, and Cornelius B. Outcalt as cestui que trust, in reference to the dam at Outcalt's mills, on Manalapan river, into which river Little Mill brook empties. The mills of both parties are run by water-power supplied by their ponds near their mills. The complainants employ steam-power also. Outcalt's mills are used for the grinding of hominy, and the Railroad mills for manufacturing snuff and tobacco, and the latter are a large and valuable property, in which is conducted an extensive and profitable business. The complainants allege that the dam at Outcalt's mills, which are abouta mile and a third below the Railroad mills, (which are near the junction of the Manalapan and the brook,) has since about 1872 been unlawfully kept at too great a height, and that by reason thereof the water of the Manalapan and the brook, which latter is the tail-race of the Railroad mills, has been backed up upon the plank platforms or sheathing under the water-wheels to such a height as to interfere very much with the running thereof, and so much as to compel the proprietors of the mills to abandon the use of one wheel. The object of the suit is to obtain a decree declaring and establishing the lawful height of Outcalt's dam, and compelling the defendants to reduce it to such height; and enjoining them from backing water, by means of the dam, upon the platforms or sheathings at the Railroad mills. John Outcalt alone has answered. He is the lessee and occupant of Outcalt's mills, and runs them in his own business.
The complainant's mill-site is an old one. It was used early in the present century for a grist-mill and distillery. Afterwards it was used for a snuff or snuff and tobacco mill. Down to about 1874, so far as the recollection of the witnesses goes, there was but one building upon it, and that had but one (wooden) water-wheel. The wheel was what is called a breast-wheel. The mill and wheel, and the headrace leading the water from the pond to the mill, were located on the east side of the brook. The platform or sheathing under that wheel was about four inches above the water in the brook, which, as before stated, is the tail-race. In 1854 the wheel that was then in the mill was taken out, and another put in its place over the same sheathing. That wheel remained until about 1874, when it was taken out because of the back-water, and a turbine wheel, which it was supposed would work to better advantage, and not be so much obstructed by the back-water, was substituted in its stead. That wheel proved unable to work to advantage in the back-water, and it was taken out about 1877, and the use of water-power in that building was abandoned, and steam-power was substituted therefor. The head-race was filled up, but the sheathing was left undisturbed, and it has remained there ever since. About 1854 a new mill building was put up on the west side of the brook, in which a water-wheel (a breast-wheel) was put, and a head-race to it constructed. The sheathing under that wheel was placed about eight inches above the surface of the water in the brook at its ordinary height. The sheathing under the wheel on the east side of the brook was, it will be remembered, but four inches above the surface of the water in the brook. In 1885, after this suit was brought, the wheel on the west side of the brook was taken out, and another of the same kind, size, and construction substituted therefor. The sheathing thereunder was taken up, and other sheathing put in the place of it, at the same height from the water on the under side, but the planks of the new sheathing were half an inch thicker than those of the old. From what has been said it appears that from about 1854 to about 1874 the mills had two breast-wheels; from 1874 to 1877 but one, and a turbine wheel; and from 1877 a breast-wheel only. So far as the memory of man extends, there was neithermill nor pond nor dam upon the Outcalt-mills property until about 1824 or 1826, at which time the Railroad-mills property had long been occupied as a mill-site. John Outcalt's grandfather, Judge Outcalt, built the first mill which was ever upon the Outcalt property within the recollection of any one living. There are witnesses who remember when there was no mill nor pond nor dam upon the property. From Judge Outcalt the property went to his son John D. Outcalt, who died in 1855, and John Outcalt, who was the son of John D. Outcalt, then became the owner. About 1882 it passed from him, by sale under foreclosure proceedings, to David D. Acker, trustee, and since then Outcalt has continued to occupy it as lessee.
It is clear from the evidence that up to about 1872 the Railroad mills were never troubled with back-water on the sheathings, except in time of freshet, and that from that period their water-wheels were almost continually impeded by such obstruction. It is also clear, not only from the evidence, but from the admissions of the answer, that about that time Outcalt raised the dam at his mills about two feet higher than it then was. In his answer he says that he "built a dam at the present height about the year 1869, and that it has not been raised or varied in the slightest degree since that time; and that, although the head is some two feet higher than it was kept by some of the immediate dams, it is a foot lower than the old Indian embankment which existed for some 200 feet, within his recollection." It appears from his testimony that he raised the dam (as to one foot with the flash-boards) two feet higher than it was in his father's time. His father repeatedly said, while he was the owner of the property, that the height to which he had a right to raise his head of water was seven feet above the water at the foot of his dam. Generally, however, he did not raise it higher than six feet and a half.
An effort was made by Outcalt to cast discredit upon the testimony of John Bowers, an important witness for the complainants on this head, by showing that he is probably much younger than he says he is. He testified that he was about 70 years of age when he was sworn. It appears that he was born in or about 1828, probably; so that when he testified as to his age (in 1884) he was about 56 years old. He says he does not know his age. If he was born in 1828, he was old enough when he was in the employ of Outcalt's father to take notice of and remember the things as to which he gives testimony. He says he went to work for Outcalt's father in 1847 or 1848, he thinks, and worked there for about two years. If he was born in 1828, he was 19 or 20 years old when he went there, and 21 or 22 when he left. He began to work steadily at the complainants' mills in 1854, and has worked there ever since. If he was born in 1828, he was 26 years old in 1854. He says that the last year that he worked for Outcalt's father he was foreman, and had charge of the water.
There appears to have been no warrant for the raising of the head of water above seven feet from the surface of the water at its ordinary stage at the foot of the dam. It is urged that the dam is part of an ancientdam which was once known as "Weequehalaw's Upper Saw-mill Dam," which it is said was owned by an Indian chief named Weequehalaw; that part of the Indian dam still remains, and is the embankment which constitutes part of the dam in question; and that the Indian dam, judging from the embankment, was still higher than the other part of the dam after it was raised by Outcalt. Although the answer states that Outcalt's father claimed the right to raise the dam to the height of the old Indian dam, there is no proof of it, and, indeed, there is no evidence of any importance as to this so-called Indian dam. It is said in the answer that Outcalt's mill-dam was once known as the "Lower Indian Dam," and was described in the early deeds as "Weequehalaw's Lowermost Saw-mill." But it appears from the testimony adduced by Outcalt that the dam of that saw-mill was in another place, and the witness says that the dam in question was Weequehalaw's upper saw-mill dam. Surveys of 1722 and 1752 are produced, in which Weequehalaw's lowermost saw-mill is referred to. But there is no evidence offered, except tradition, as to the upper saw-mill. Weequehalaw's saw-mills appear to have existed over 150 years ago, and it is quite probable that the places of the dams were referred to in conveyances merely as land-marks long after the dams had ceased to exist and the mills were gone. There is no evidence that the dams existed at the dates of the surveys of 1722 and 1752; but, if it be conceded that Outcalt's dam is in the identical place which of old was occupied by either of those so-called Indian dams, it is of no consequence in deciding this cause. It is certain that there was neither mill, dam, nor pond there, when Judge Outcalt, John Outcalt's grandfather, built his mill there. Up to that time there had been neither mill, pond, nor dam there within the memory of man.
No right to raise the water can be deduced from the height of the embankment of the so-called Indian dam. Not only is the fact that Outcalt raised the dam two feet established, but it is established, also, that that was the cause of the back-water of which the complainants complain. As already stated, before the dam was raised there was no backwater at the Railroad mills except in time of flood. After the dam was raised the water backed up in the Manalapan for a distance of over two miles from the dam. The notable evidences and consequences thereof were very numerous and unmistakable. Among them were the diminution in the current of the Manalapan from activity to sluggishness, attributable to no other cause; the submerging of an island in Outcalt's mill-pond; the raising of the water in the river to an unwonted height, up to the top of its banks, up to and above Little Mill brook, and the raising of the water in the brook so as to flood the sheathing at Railroad mills; the killing, by the rise of the water in the river, of trees upon the banks; the submerging of the sills of the old Forge dam; and the submerging of the Forge bridge and the Forge road. Outcalt admits that his dam backs the water as far as Laurel hill, which is only one-eighth of a mile, or 660 feet, below the mouth of the brook, but he claims that it backs it no further. The testimony of the civil engineers establishes the fact that it backs the water up to and beyond the sheathing of thecomplainant's mills. That testimony, it may be added, furnishes clear proof that the back-water complained of is entirely attributable to the raising of the dam. According to the leveling and calculations of Mr. Weston, if the water in Outcalt's pond be raised to the full height of the flash-boards, it will cause back-water to stand on the sheathing of Railroad mills to the depth of four and a half inches. According to Mr. Tice's levels, if the water in the pond be at the full height of the flash-boards, it will cause back-water on the sheathing of the complainant's mills to the depth of nine and three-eighths inches. Those engineers were called by the complainants. Mr. Homman, Outcalt's engineer and witness, testifies that, according to his levels, the level of the top of the flash-boards of Outcalt's dam is five and three-eighths inches above the complainant's sheathing. His levelings, made March 25 and 29, 1885, of the surface of the water, show that the dam backs water to a greater depth. The first of those levels was made at half past 10 o'clock at night, when Buckalew's mills, (on the Manalapan, above the Railroad mills,) Railroad, and Outcalt's mills were all shut down. He then found that the level of the water at the sheathing of the Railroad mills was two and a half inches below the sheathing, but the water at Outcalt's dam stood nine and a half inches below the top of the flash-boards; so that, if the water in the pond had been up to the full height of the flash-boards, it would have caused seven inches of back-water on the sheathing of Railroad mills. The other level referred to was made on Sunday, when all the mills were shut down. The water at the complainant's mills stood an inch and a half deep on the sheathing; but Outcalt's pond was not full. The water in it stood five and a half inches below the top of the hand-boards. Had it been full up to the top of the boards, the water would have stood seven inches deep on the sheathing of the complainant's mills.
The proof on the part of the complainants is that, in ordinary conditions of the water, the back-water on the sheathing, since 1872, has stood at the depth of from 10 to 20 inches. There can be no reasonable doubt that the effect of the raising of Outcalt's dam two feet has been to pen back, and so store for the use of Outcalt's mills, the water in the river and brook to a point far above and beyond the complainant's mills. The consequence is that the brook, up to and beyond the latter mills, is not only full of water comparatively stagnant, whereas, before such raising of the dam it was almost empty when no water came from the wheels of those mills, but it is so raised as to flood the sheathing to the depth sometimes of almost two feet. The fact that Outcalt says that the raising of the dam was done before 1872 in nowise prevents the conclusion that this back-water is due to such raising; for one foot of the height of the dam was added by means of hand or flash-boards. It does not appear that he kept or had his pond full up to the full height of the flash-boards before 1872. Indeed, it appears from his testimony that it was not until 1872 that he put in his second wheel. That wheel was somewhat larger than the other, and required more water. It may be added that he says that he raised the cap-piece in 1872.
He insists that the water in the pond, if raised to the height of the top of the flash-boards, would not be higher than it has been maintained by his predecessors. Not only is the weight of evidence decidedly to the contrary, but he does not in his answer make such claim. He says, as before stated, that, "although the head is some two feet higher than it was kept by some of the other intermediate dams, it is a foot lower than the old Indian embankment, which existed for some two hundred feet, within defendant's recollection." All that is claimed in the answer on this point therefore is that the head was kept as high as the top of his flash-boards by some of the intermediate dams. But there is no proof that the water was kept so high by any intermediate dam. In his testimony he says that he raised the dam to its present height so as to hold the water higher. He gives as his reason for raising it that the Manalapan had been straightened below Englishtown, and by Mr. Buckalew, and that the owners of the complainant's mills had obtained the control of more water than they had ever had before. It, may be remarked that the first-mentioned straightening was clone, as he himself says, about 1855. The Buckalew cuts were made about 40 years ago; and not only does it not appear that the proprietors of the Railroad-mills property had, when he raised the dam, added to their supply of water, but, on the contrary, it appears that they had not done so.
And here reference may be made to the testimony of four witnesses, Levi Bennett, John M. Applegate, William Mabley, and Outcalt himself, as to the height of the water while Outcalt's father and grandfather were owners of his mill. They testify that a certain platform of planks was regarded as a criterion, and that, according to that criterion, the water was kept no higher by Outcalt than it was by his predecessors. The testimony on this point is too vague and uncertain to be of any value. Outcalt distinctly admits that he raised the water about two feet higher than it had been before. To refer more particularly to his testimony on that point: He says that from 1864 to 1868 the pond was out; that in the latter year he rebuilt the dam, but did not raise it; that in 1869 he raised it higher than the preceding dams; and that after that he raised it again by means of the hand-boards. He raised the cap-piece which was on the dam in his father's life-time about two feet, and he says that this was done in 1872. He admits that he raised the dam from eighteen inches to two feet higher than it was in his father's life-time. He will not say that he did not raise it as much as two feet higher. It appears that in a suit which John M. Bennett, who owned land on the Manalapan about one-quarter of a mile above the complainant's mills, brought against him to recover damages for flowing his land, and in which, in 1880, the plaintiff recovered a judgment for damages, Outcalt testified that he raised the dam two feet.
Outcalt insists also, that he has a right to flow the complainant's mill-site, under a reservation contained in a deed from Robinson Thomas to John Bowne, dated June 1, 1805, by which the grantor reserved to himself, and his heirs and assigns, the right of overflowing as much of the land thereby conveyed as he, or any other person under him, shouldthink proper for the use of a mill-pond; and also for using so much land on the bank of the Manalapan as might be useful for erecting any mill or mills, or anything necessary or useful therefor, by paying the grantee at the rate of three pounds York money per acre for every acre so covered with water, or used for buildings or other conveniences. It is conceded by the stipulation of counsel that the title to the Outcalt dam and mill property was in Samuel Culver in 1790, and that the defendants claim title under him. They do not hold under Robinson Thomas, and, of course, have no claim to the benefit of that reservation.
The owners of the complainant's mill have, from time immemorial, up to the time when their enjoyment of it was interrupted by John Outcalt, enjoyed the right for the vindication of which this suit was brought. The injury is of an irreparable character. The diminution of power caused by the back-water embarrasses and damages them in their business. Outcalt had no right to raise the water in his pond above seven feet from the surface of the water in its ordinary condition at the foot of the dam. He has provided, by his dam and flash-boards, for raising it two feet higher, and he has persisted, against remonstrance, in maintaining his head of water above the seven feet. The defendants should be enjoined from raising the water in the pond, or permitting it to be raised, by means of their dam or flash-boards thereon, above the seven feet, and they should be required to reduce the height of the dam accordingly. This is necessary in order to restore and secure to the complainants the right which the owners of their mills possessed and enjoyed when Outcalt raised the dam. He has produced no evidence that either his father or grandfather had or ever claimed to be entitled to a head above the seven feet.
There will be a decree in accordance with this opinion.