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elapse. The case before us is of this latter character in that an election that could in reason have been made within a few days, or at most a few weeks after the right to make it arose, was,

without any adequate excuse that was consistent with promptitude of action, delayed for months. It is precisely this conduct that (as we decided in Dennis v. Jones and Clampitt v. Doyle) affords plenary proof of an election to abide by the contract, which is irrevocable. For this reason the bill of complaint should have been dismissed by the court of chancery, and for this reason the decree of that court must be reversed.

This result renders it unnecessary to do more than all ude to the fact that the prayer of the complainant's bill with respect the several sums to be paid to her by the defendants in excess of purchase price, interest, insurance and taxes, is made up for the most part, if not wholly, of items for which a court of equity, upon the rescission of a contract, gives no compensation; as to some of them, because they are in the nature of unliqu idated damages, and as to others, because of the essential difference in this respect between the rescission of a contract and an action for deceit based thereon.

To obtain the former, the complainant must show a material misrepresentation not necessarily untrue to the knowledge of the defendant; whereas the gist of the action for deceit is conscious falsification-hence the injured party may not, by selecting the action that is the more easily proved, obtain in equity the measure of redress that is recoverable only when the more onerous burden has been sustained in a court of law. This distinction is pointed out in Redgrave v. Hurd, 20 Ch. Dir. 1; Newbigging v. Adam, 34 Ch. Div. 582; 13 App. Cas. 308, and is treated extensively in the notices in 6 Eng. Rul. Cas. 754

et seq.

The theory of the complainant's bill as exemplified by its specific prayer for relief is entirely indefensible, and the decree, therefore, granting such relief in general terms is, upon its face, erroneous.

The learned vice-chancellor, however, in his conclusions expressly disavowed the purpose of allowing unliquidated damages, and confined his order of reference to such improvements

as were

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the "necessary and proper consequences” of the sale that was set aside. Inasmuch, however, as "necessary” is quite generally construed to mean “suitable,” rather than “indispensable" (New Jersey, &c., Railroad Co. v. Hancock, 35 N. J. Law (6 Vr.) 537; Camden, &c., Railroad Co. v. Woodruff, 36 N. J. Law (7 Vr.) 94; Morris, &c., Canal Co. v. Love, 37 N. J. Law (8 Vr.) 60), it may be doubted whether the error of the decree was thereby removed or rendered harmless to the defendant. The matter, however, need not be further pursued since the decree must be reversed and the bill dismissed for the reason first given. To this end the decree is reversed.

For affirmance-None.

For reversalTHE CHIEF-JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, CONGDON—13.

ALINE E. C'RANE et al., respondents,

V.

DELPHINE MCMURTRIE et al., appellants.

[Submitted April 4th, 1910. Decided November 14th, 1910.)

1. It is an established rule of construction that the words of a private grant, if equally susceptible of two meanings, shall be taken most strongly against him who uses them.

2. In a deed the words of description were “three hundred inches of water under a two and one-half feet head.” It was shown that this was the equivalent of nine hundred and forty-eight cubic feet of water per minute if measured by the “practical inch,” and upwards of one thousand five hundred cubic feet per minute if measured by the “theoretical inch.” There was nothing in the context or in the contemporaneous circumstances to show whether the larger or the more restricted meaning was intended. Held, that as against the grantor and those claiming

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under subsequent grants from him the larger meaning would be taken as intended.

3. A grantor cannot by creating practical difficulties, after he has made a grant that is free from them, defeat a grant already made or influence its legal construction.

4. A court required by the issue to determine the legal rights of parties by construing their written grants may upon proper pleading assume the further task of laying down a practical rule for their enjoyment, but if either must give way it must be the latter, since the prime office of courts is to determine rights, not to mould them to circumsta nces.

Appeals from a decree of the court of chancery advised by Henry C. Pitney, advisory master, whose opinion is reported in 68 Atl. Rep. $92.

Jr. Wayne Dumoni and Mr. William II. Corbin, for the Bamford Brothers, appellants.

Mr. William II. Vorrow, for Abram McMurtrie, appellant.

Mr. George 11. Shipman, for Delphine McMurtrie, appellant.

Messi's. Smith & Brady and Mr. John W. Harding, for Aline E. Crane, respondent.

The opinion of the court was delivered by

GARRISON, J.

The decree brought up by these appeals undertakes to set t le the respective rights of three parties in their proprietary use of a water power. The description of these rights and the history of their acquisition by the several parties are so fully stated in the opinion of the learned advisory master that without any extended restatement of the case we may proceed at once to point out the two matters in respect to which we have come to a conclusion different from that reached in the court below.

The three parties to the litigation are Crane, Bamford and McMurtrie, each of whom has by grant a property right to a certain quantity of the water that flows through an artificial raceway on the Pequest river in Warren county. These grants, which

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are in effect from a common grantor, are, in point of time, first that of Bamford, then that of Crane as to one of her grants, then that of McMurtrie, and lastly, the second Crane grant.

The only questions with which we find it necessary to deal are first as to the manner in which the ascertainment of the quantity of water to which Bamford is entitled was treated in the decree, and secondly, the proper construction of the grants of Crane and McMurtrie.

The present litigation was started by the filing of a bill by Mrs. Crane, by which she claimed that she owned one-fourth of the flow of the water in the raceway, with which right she alleged that Bamford and McMurtrie had interfered by placing in the raceway an obstruction with an aperture that permitted less than one-fourth of the flow to come to her. The prayer of the bill was for the removal of this obstruction, and that the defendants be enjoined from interfering with the complainant's right. Bamford and McMurtrie, by their answers, denied the complainant's right to the proportion of the flow asserted by her, and by their cross-bills asked the court of chancery to determine the respective rights of the parties to the flow of the raceway and to decree how such flow shall be gauged so as to secure the several enjoyments thereof.

The substantial questions therefore on which the parties joined issue and went to trial were first their respective proprietary rights as grantees of the water flowing through the raceway, and secondly, how such rights when determined should be practically enjoyed by their several owners. The first question which is one of the construction of written grants admits of a conclusive judicial answer based upon the established canons of that branch of the law; the latter, which is a problem in applied physics, may or may not admit of precise solution by the judicial application of the scientific data furnished by the testimony to the practical situation; if either must give way, it must be the latter, since the prime duty of the court is to determine rights. Whether such rights when determined can be practically adjusted by the decree of the court or whether they must be left to such adjustments or compromises as the owners of such rights alone have the power to make, depends upon the nature of such rights and the facts of the

Crane v. McMurtrie.

77 Eq.

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given case. Clearly the rights of the parties come first. These remarks are made, because in each of the respects in which we differ from the conclusions of the learned advisory master, it seems to us that in a juncture in which either the rights of the parties or the regulation of such rights must give way the decree gives precedence to the latter over the former.

From the decree, which was in all substantial respects favorable to the complainant, Bamford has appealed and McMurtrie has appealed. Mrs. Crane has not appealed.

Bamford's appeal challenges that part of the decree by which his right to the water flowing through the raceway is limited to nine hundred and forty-eight cubic feet per minute. The decree adjudges that this is the equivalent in cubic feet of “three hundred inches of water under a two and one-half feet head,” which is the language of Bamford's grant.

It is not questioned that this is a correct result if the language quoted be construed as requiring that the flow of water thu s described is to be measured by the "practical inch,” which the learned advisory master explains in his opinion and applied in the decree that he advised. It appears, however, from the testimony and in the conclusions of the advisory master, that there is another mode of measuring such a flow, viz., by the theoretical inch,” which, if applied to the flow of water called for by Bamford's grant, would give him upwards of one thousand five hundred cubic inches of water per minute. Upon the assumption that the language of the grant was equally consistent with either of these modes of measurement the decree gave to Bamford the less favorable of the two. This is the adjudication that Bam ford challenges by his appeal.

The reasons given by the learned advisory master for adopting the mode of measurement that he did, and for his rejection of the other mode, are set out in full in his opinion and need not be repeated here excepting as to his final conclusion in which after saying: “I shall not attempt the difficult task of deciding between these conflicting views,” he announced that he would "adopt the views of the defendants' engineers.” Just what was meant by this, we cannot say, but assuming that it referred to some evidence given in the cause, we have examined the testimony

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