Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1867-10-02
SUPREME COURT OPINION.
KNOXVILLE, TENNESSEE, SEPTEMBER TERN, sc

KNOXVILLE, TENNESSEE, SEPTEMBER TERN, 1861
H.. cALDwKLI, ATTORNEY GENERAL AND REPORTER.
BILL AND CROSS BILL.
JESSE H. CROUCH vs.. JAMES A. SHEPARD, and JAMES
A. SHEPARD vs. JESSE Il. CROUCH.
The complainant Jesse Crouch and son. were the own
of small tract OF land, containing i've seres Fall
Branch, in Washington county, on which there was
Saw Mill and Cardng Machine. On the sh day Of April,
and exeeuteda deed After the giving OF the boundaries the
deed reces with full to erect all works
Shepard may fit erect and build the premises to-
geher with all and singular its appurtenances &c. after the
following recitation the said bargainers
in the above conveyance retain the right of watsrane
the said James shepard done with at his
MILL not 20 prove detrimental to the said Shepard
and the object reserYng said water is to other
ehnery below and for no other purpose The deed was d
LEGGED ana registefea At tne execution OF sne
tered into by which the compainants to their
cardng machine and saw mil within specified time 80
to enable the said Shepard build his MILL and he to
build saw mill costing about one thousand dollars The
compliments removed the mill and cardng machine wthin
the time specified. Shepard built his MILL but placed
upon the opposite bank of the from where tho old mill
pard, the complainant built mis- lot below carding
chine to be run py anG opened ms through
the lot conveyed BY placing ns saw mill on the opposite
of the channel Of and
passed the wheel of the mill prOpel the machinery
of the complainant and another lane running
into the original one 50 as to gather the surplus water that
bank of the stream at the old mill site.
To do necessary build small dam below,
high After this DONE defendant Shepard removed
it, and forbid the complainant to replace it or the second
Therenpen this bill fled in which the complainant in
sist that he m entitled to use ali the water of the stream a
ter the mill Of the defendant and to have the
collect it and the defendant having mads it necessary by
building his mill on the opposite bank has SO changed
the current that win not into the contem
An injunction was prayed obtained restraining
Shepard from disturbing his dam and Of the water
The defendant in his sets out his deed and insists
proper construction of III the complainant only
his said MILL and that be is not entitled to the surplus water
that the damthat he has been greatly damaged
dam and flooding his wheel that by the two lanes cut
from the of his stables he prayed for of
Cross Bill 1t was agreed the original bill should be Ia
ken answer to the cross bill.
The weight of the proof the building of
of the defendant the opposite side of the stream the
lane from the mill would not gather the surplus that
passes the dam. That gather the surplus
short waterane made by the complainant was necessary
throw the this egheen inches
requisites that the erection of this lane obstruc the
way defendant his stables bridge by
the complainant the unsafe in erect
ing the dam the complainant dug part of the soil of the
defendant that the water passing under through the
mill was not sufficient to prop the machinery of the
plainant.
The Chancellor of opinion that by the terms Of the
deed and reservations the complainant had the right only
run sple 50 as 70 receive ne water at the saw
mill SO soon as the defendant was done with it, that IS to
take the Immediately below the mill Wheel bat
had no right running the dam and
sseF o. running around the raih
aenaant had TIE right any kind Of machinery
for account upon The cross
The determination of the questions involved depend upon
the construction to be given to the deed of April
1896 with reservations therein contained By the terms
Of the deed the complainant granted to the defendant
ryng any machinery he may see to build ON the
premises with the reservation of the right waterane
the grantee with it at his saw MILL so as not
to prove detrimental to him. The object of the complainant
reseTyng the OF the water other machinery
For the proposed construction of this deed with its
TONS becomes necessary to look to the situation Of the
Decd and the intention and purpose Of the parties making
it, and to give it that construction which the persons making
the deed believed the have accepted-d Kent 55
It is rule of law the whole contract should considered in
determining the meaning Of all of its parts for the
supposed to have the purpose and object view in all
than others those which may be Illustrated By
the light OF Parsons on Contracts Is 1t lie ned
the rule that the language of deed contract is to be ksn
more strongly against the party using it, though it be
according Lord Bacon drawn depths ofreason APP
ston requisite to give them lawful effect rule Of
rules of exposition fail.
The modern reasonable practice is to give to the
language its just and to search for precise meaning
and requisite is to give due and fair effect
constructon-2d Kent $780,
by rule what was the intention of the partiss
in the execution and reservations of the deed
complainant was the owner of the lot convened The
lands granted to the defendant power to erect
The complainant had the time of conveyance saw
mill and cardng machine the land propelled by the
power BY the terms OF the agreement cotemporaneous with
the deed, he binds himself them within given
time, and the defendant agrees build mill costing
about one thousand daars By the terms of the deed there
adsnct reservation Of the water after has passed the
this the of the passed on the oh side
by the mill of the complainant and the building
passed the MILL well the that passed the dam
From the agreement made coemPoraneous with the deed
the in tamil
Ill would be built the old Site not changing
the water the reservation TO build and the
gives complainant ABSOLUTE right to
it. reservation is held to operate grant TO right
out of the anted promises by force and effect Of the
ton itsef-Parsons Contracts % Angl Water
Courses 1856 The object and purpose Of this reservation by
the complainant TO the water after It had passed the
defendants mill for the purpose Of propeng maehinery
he Yves entitled to the use Of it. but in so doing it not to
be detrimental to the defendant and the execution Of the
contract it clearly the intention Of the parties the
painant should have the Of tho water after had passed
the mill of the defendant and the water flowing the south
would collect sufcient prope his ma
ehinery. Such evidently the intention Of the parties
The defendant proper to build his mill the north
the srea and has thereby divided the channel
waterlsne from bis saw mill will not collect the water that
It is insisted defendant he has by the contract
right build machinery any part the aud If the
allowed to the that passes
that passes under his mill
that he should not have the right Of using the surplus water
that passes the dam.
To this construction cannot assent The grant an
undivided will authorize the
rante to appropriate or modify the stream TO the injury Of
others who have just interest In The property in
stream of water is ndyisibeAngl Water Courses 81.
To give the construction the deed the compliments
only entitled to tho water thas passed the defendants
MILL would in effect destroy the reservations Of she grant,
he could only operate his machinery while the Defendants
running he did proper his MILL tho
could not have the OF the water. SEch
would be wholly inconsistent with the object
intention Of both the parties the execution Of the deed
By the Of tse contract the complainant to have
Of the water after il passed the defendants mill
received the surplus water from the dam in his water lane 81
veil that which propelled the machinery The change Of
terefe with thereserved right Of the complanaSt ~ n
Of the defendant in dividing the water from The channel
becomes necessary for the complainant to operate ms ma
chinery he has the right 20 build another water
into that lane contemplated by the deed bat 70 Du
that lane in using the means 70 eose me
he has right food the machinery Of the dssna
ant or iniurs the property thar would necessary follow
Of the defendant in compelling him TO erect
different pons than that contemplated by te
We are Of opinion upon construction Of the contract
the entitled the Of all the water Of the
stream after il ths mill Of the defendant and that be
the right wateraney anes necessary
operate his machinery but IN doing be cannot
otherwise than necessary follows consequences Of the
ndzrts having changed the caanae Of tbs stream 10 the
opposite bank and If the sane b detrimental 70 h and an
The decree Chancellor vii bf reversed the Cross Bill
dismissed, and decree for the eonplainszts
true copy. SAANAhbfDhDy
N. L. PATrzRs5S, Clerk
SARAH BATLEss. widow, &C., vs. BARTON BAYLEss and
MICHAEL wITHERs Executors &C., Of JOHN BAY
LESS, deceased.
This case stands upon exception to the Masters report
which involve the construction Of the Act Assembly pro-
after the death Of their husbands.
The complainant disssnted from her husbands viii an
ed 10 Jet apart 20 much Of the personal estate Of sr
might be necessary for TIE support Of hs5sss5