Hall v. . the Whitehall Water Power Co.

*134 Rapallo, J. We are of opinion that the plaintiff’s grantor, Hancock, took title under his deed only to the strip of upland, thirty feet wide, lying between William street and- Wood creek, and that he acquired no rights in the land under the waters of the creek, or in the water power. This, we think, is the true construction of the deed from the referee in the foreclosure suit to Hancock, in view of the situation of the property and of the circumstances existing at the time of the conveyance and prior thereto. The [description in the deed from the referee is similar to that contained in the deed of the Phoenix barn lot, dated in 1863, from John H. Boyd and wife to Gribbs, under whose lessee, Irwin, Hancock afterward held the premises in dispute until the sale under the foreclosure. The Phoenix barn lot consisted of a strip of land on the easterly side of Wood creek lying between William street and the bank of the creek, which was precipitous, being a natural wall of stone, the top of which was from twelve to fifteen feet above the surface of Wood creek when the water was high. This strip of land, called the barn lot, was about one hundred and eighty-five feet long and thirty feet wide from William street to the edge of the bank. It had for many years prior to 1863 been used for a barn site, and was so used for several years thereafter. No attempt appears to have been ever made by any occupant of the barn lot prior .to 1875, to make any use of Wood creek for power or otherwise. The water power of the creek had been used for a great number of years by a factory and grist-mill, north of and adjoining the barn lot at or near the mouth of the creek. These establishments were supplied by means of a dam built across the creek at the north end of the barn lot, which dam had stood from 1818 to 1829, and from 1841 until 1864, when it was carried away. While the dam stood, it set back the water opposite the barn lot so as to deprive it of any fall, and thus, as well as by, the natural conformation of the land, the barn lot was entirely separated from the creek and was in fact enjoyed and treated as a separate property. In 1863, and while the mill and factory were in operation, and the dam was standing, using all the water power of *135 the stream opposite the bam lot, Boyd and his wife conveyed to Gibbs the lot known as the Phoenix barn lot, by the following description “ Bounded south by James Greenough’s lot, west by Wood creek, north by the Axe Helve Shop lot and east by William street; the lot hereby conveyed is about one hundred and eighty-five feet on William street, and about thirty feet wide from Wood creek to William street.” Gibbs continued to use the lot exclusively for the purposes of a barn, until i 868, when he leased the same to Irwin. Irwin sub-leased to Baldwin and Perry the southerly portion of the lot, and to James D. Hancock the northerly fifty-five feet thereof. The dam previously existing having been carried away in 1865, Hancock, in 1875, for the first time, undertook to use the water power opposite the portion of the lot occupied by him. While Hancock was in occupation as lessee, the whole property known as the mill lot was sold under judgment of foreclosure of the Williams mortgage (which was a lien, paramount to the title of Gibbs and his lessees), and at the foreclosure sale, which took place August 81,1876, Hancock, the grantor of the plaintiff, became the purchaser of the lot in question, and it was conveyed to him by the referee by deed dated September 5, 1876, wherein it was described as “ bounded on the north by lot T, on the west by Wood creek, on the south by a lot marked 228, on the east by William street, the lot hereby conveyed being fifty-five feet in length along William street, from and off the north end of said barn lot, and about thirty feet in width from Wood creek to William street.” At the same sale (at which Hancock was present) and before he purchased the lot, other parts of the mortgaged premises, together with “ all the waters and land under the water of Wood creek,” within the boundaries of the old mill lot, including the land under water and the waters in front of the barn lot, were sold by the referee to parties other than Hancock, but the referee in this action finds that Hancock, at the time of his purchase and of receiving his deed, did not know of this prior sale of the waters in question. *136 In view of the location and physical condition of the property, its history, and the definite specification of the dimensions of the plot conveyed to Hancock, we think it quite clear that the intention was to convey only the strip of upland, thirty feet wide, lying between the edge of the creek bank and William street, and that the description was not intended to include any part of the waters of Wood creek or any water rights therein. (Higenbotham, v. Stoddard, 72 N. Y. 94.) These water rights had for a great number of years been enjoyed and used by the owners of the mill property on the north, near the mouth of the creek, and it was not until 1875, just before the foreclosure of the mortgage, that any attempt had been made by the occupants of the barn lot to use the water power, which had become available for the time by reason of the destruction of the old dam, the rebuilding of which, by the defendant, is the matter complained of by the plaintiff in this action. Without going into the questions as to the defendant’s title, and without intending to intimate any doubt in respect to it, we think the judgment should be affirmed, with costs. All concur. Judgment affirmed.