Partridge v. . Eaton

*486 Church, Ch. J. This action is brought to restrain the defendant from using Otter creek for floating logs down the same, and to establish an exclusive right in the plaintiff to the use of the creek from its source, at Otter lake, to his mill. With the exception of an act of the legislature declaring the stream a public highway, the case was submitted upon the plaintiff’s evidence, and the court dismissed the complaint. There seems to be an apparent equity in the plaintiff’s claim, arising out of the expenditure of money in improving •the stream; but to maintain the action and exclude the defendant from the use of the stream, the plaintiff must show a sufficient title, and bring the case within some established principle. The defendant has a mill on the same stream, below the plaintiff’s mill, and is the owner of a large tract of land above the plaintiff’s mill, through which- the creek runs, and the plaintiff also owns a tract still above, both of which, I infer, are principally valuable for timber. The defendant’s title was derived from the executors of Lyman R. Lyon, and the plaintiff’s title from the said executors and one Botchford, who owned the same as tenants in common. Between the two tracts is a lot containing 400 acres, called the tannery lot, which was also owned by said executors and Botchford. • The plaintiff asserts the exclusive right to the stream by virtue of the grant from the said p.arties in 1869. The tannery lot was not conveyed, but a saw-mill adjacent to it was included, and the deed contains this provision : “ The said Partridge has the right to use the stream called Otter creek, that runs through the tannery lot, for the purpose of floating logs, timber, lumber and products through said lot, and to improve and deepen the said stream, and also to make a canal through said lot, and roads and other modes of transportation, and keep and maintain them, and to have the full use of them; but such improvements or any of them are not to be made or maintained to the injury of the tannery water power, or business carried on at the tannery.” At the time this conveyance was made the Lyon estate, alone, owned the large tract below the tannery lot, which was subsequently purchased by the defend *487 ant; and the plaintiff claims that the right to use the streams granted by this conveyance extended to the stream through that tract. I do not think that this construction can be sustained. There is nothing in the deed indicating an intention to convey any land or right except such as the grantors owned as tenants in common; and the language must be presumed to apply to such lands only. The grantor, Botchford, describes his interest in the premises granted as an undivided two-thirds, and makes covenants in respect to such interest; and "the executors in like manner covenant in respect to an interest of one undivided third. These provisions would be inconsistent with the conveyance of any land, right or interest which did not belong to all the grantors. It would require clear expressions to establish an intent on the part of Botchford to make the personal covenants contained in the deed apply to premises in which he had no interest, or on the part of the executors to sever an easement so valuable to the large tract of timbered land which they still retained. The language employed, taken together, does not justify such a construction ; it expressly limits the use of the stream to the tannery lot, and by necessary implication the right to improve and deepen the stream is also limited to that lot; and as this is the language of both parties, who together owned the tannery lot and did not own together the tract below, it seems to me quite apparent that it applied only to the tannery lot; and as no other title was set up to the exclusive use of the stream below, the plaintiff must fail. A paper alleged to have been lost was sought to be proved in aid of the right of the plaintiff. If it had been produced it would not have availed to strengthen his title. It was only claimed to contain a license from the Lyon executors to the plaintiff to cut timber on the tract below to enable him to improve the stream. It did not purport to convey any right to the exclusive use of the stream, and is not inconsistent with the absence of such right. Besides, it was executed by only one of the executors. Another difficulty with the plaintiff’s right of action is the *488 legislative act declaring the stream a public highway. If the views before expressed as to the limitation of the grant to the tannery lot are correct, the point that no compensation was provided for the plaintiff’s interest, is not available, as he had no interest below the tannery lot. But if he had the exclusive right, I am inclined to agree with the General Term, that he would be entitled to compensation under the provision for compensation to riparian owners, and to enforce such compensation in his own right as the grantee of the most valuable part of the interest for which the riparian owner was^ntitled to compensation, or, if necessary, in the name of such owner. If the owner of the land should receive full compensation, his grantee of the exclusive use would be entitled to recover it, or such part of it as his interest represented. It cannot be that a division of the interest of a riparian owner would prevent full compensation -for such interest. The only consequence of such division would be that the compensation should be also divided. The point that the defendant is estopped from denying the exclusive right of the plaintiff is not tenable. The facts proved do not bring the case within any established rule on this subject. In the first place, it does not appear when the defendant took the title to the tract of land below the tannery. A part of the improvements, at all events, were made by the plaintiff before the defendant received the title. It does not appear that the defendant knew that the plaintiff claimed the exclusive right to the use of the stream ; and if he did, when the legislature declared it a public highway he had a right to suppose that the plaintiff would be fully compensated. There is no evidence of concealment or deception in respect to the title. For aught that appears, the parties understood the facts; and if there was any misapprehension it related to their legal rights. It is not improbable that the plaintiff believed that he possessed a superior right to the use of the stream ; but the mere expenditure of money to improve it, so as to enable him to float logs from his tract *489 above, would not be absolutely inconsistent with a contrary belief. However this may be, I see no ground to charge the defendant for the consequences of such misapprehension. As the action failed in its essential objects and purposes, it was not error to dismiss the complaint. The damages (if any) to the plaintiff’s boom and dam, by wrongful acts of the defendant, were not shown ; and if any such cause of action exists, it can be prosecuted in the ordinary way. The judgment must be affirmed. All concur. Judgment affirmed.