Towaliga Falls Power Co. v. McElroy

EvaNS, J. (After stating the facts.) The deed from Watkins to Phinazee conveyed a narrow strip of land lying on the Towaliga river, and “also all the water privileges in all the land owned by W. F. Watkins in Towaliga Kiver,” with the stipulation that the grantor was “to hold the said W. H. Phinazee or his assigns harmless against any damage that might accrue by use of said water privileges.” The land and the easement conveyed by this deed by successive conveyances passed to the Towaliga Falls Power Co. Subsequently to the conveyance from Watkins to Phinazee, Watkins sold the remainder of his tract of land north of the Towaliga river and east of Watkins creek to Mrs. McElroy, one of the plaintiffs, and to Phinazee, who afterwards sold it to Mr. McElroy. The first conveyance by Watkins to Phinazee was duly recorded at the time of the second conveyance, so that the plaintiffs, when they acquired the title, had notice of the easement passing under the first deed, and bought subject to it. Willoughby v. Lawrence, 56 Am. Eep. [1021] 758. So that in tbe determination of the question presented by the record the plaintiffs are entitled to such rights only as W. F. Watkins would have had in the land had he not parted with the title to it. In determining the nature and extent of an easement created by an express grant, recourse may be had to all of the attendant circumstances at the time of making it, construed in connection with the language of the grant. 10 Am. & Eng. Enc. Law, 411. It is apparent from the instrument itself that it was not the intention of the parties to create merely an easement in gross. This intent is manifest from the stipulation that the grantor was to hold the grantee “or his assigns” harmless against any damage that might accrue by the use of the water privileges granted, and the water privileges were to extend to all the lands owned by the grantor in Towaliga river. While the precise nature of the water privileges is not defined, it is evident that they were to appertain to the use either of the land conveyed by the instrument when used separately, or in connection with other land of the grantee. “The right is appurtenant, and not in gross, when it appears that it was granted for the benefit of the grantee’s land.” Jones on Easements, §36. The use of the water privileges would be of no practical advantage to the grantee were the deed to be considered as granting an easement in gross; but if the language employed reasonably implies the use of the water privileges in connection with the lands of the grantee, then it may become a substantial and valuable property right appurtenant to the grantee’s land. In other words, the deed pertinently suggests that the easement of water privileges is to be appurtenant to a dominant estate owned by the grantee. In the construction of such a grant, the courts will look to the intention of the parties, not only as appearing from the instrument itself, but also from the circumstances of the transaction, the situation of the parties, the condition of the property at the time, and the configuration of the surrounding countiy. Smith v. Thayer, 155 Mass. 50. All these things are to be supposed as being in the contemplation of the parties at the time, and may be considered in ascertaining the true intent and purpose of the parties to the instrument at the time of its execution. The record discloses that at the time of the conveyance of the narrow strip of land along the river and the grant of the easement, certain promoters had in eon1022 templation the construction of a clam about one mile down the river at the falls. These promoters attempted to procure from the grantor an option on an easement of flowage rights on his land. The grantor refused to give such an option, but did sell and convey to them the small strip of land, together with an easement of the water privileges on all of his lands in Towaliga river. At the time of this conveyance, the grantor deposed, it was the understanding that a dam was to be erected at the falls with a height of seven feet. It further ajopears that the promoters obtained from another riparian owner an easement of the water privileges, with a stipulation that the dam was not to exceed five feet in height. One of the promoters admitted that at the time of this conveyance there were several discussions as to the height of the dam, but said that nothing definite was arrived at or agreed upon until competent civil engineers had made surveys, upon whose report the height of the dam was fixed at twenty-five feet; but these surveys were made several years after the execution of the conveyance. TJnder this evidence the judge could well arrive at the conclusion that the intention of the parties was to grant an easement of flowage on all of the land of the grantor in Towaliga river which would result from the construction of a dam of the height in the contemplation of the parties at the time of the conveyance, and he was authorized to find from the evidence submitted that this height was seven feet. The plaintiff in error contends that the dam of the Power Company was in process of construction during a long period of time, and that the plaintiffs knew that large sums of money were being expended in its ereétion, and that the application for injunction was not made until a dam to the height of twenty-five feet had actually been constructed and the water turned in the basin, and that the delay of the plaintiffs, affected with this knowledge, amounted to an estoppel of their right to complain as to the backing of water on their land, consequential upon the construction of a dam of this height. The plaintiffs, on the contrary, while admitting a general knowledge of the construction of a dam at a point upon the river a mile below their land, contend, that, as they were not civil engineers, they had no opportunity or means of knowing that a dam of this height would back water upon their land, and that as soon as the water was turned in the basin and the back water began to invade their lowlands, they immediately ap> [1023] plied to the court to prevent the overflow of their lands. We do not understand that an individual owner of property is estopped because his neighbor or another person a mile distant from him shall erect a valuable improvement., with his knowledge, for the full enjoyment of which improvement it would be necessary to invade his premises. No man has the right, without license or authority, to enter upon another’s property solely because such- appropriation is necessary to the .enjoyment of improvements on his own property, erected with the knowledge of the owner of the premises sought to be invaded. If, in the construction of its grants of water privileges, aided by extrinsic evidence, it shall appear that the Power Company bought the right to back water on the plaintiffs’ lands,'in such a case the plaintiffs, having bought with notice of the Power Company’s rights, could not complain. However, if the extrinsic evidence limited the application of the easement to the erection of a dam of a certain height which would not have the effect of submerging the plaintiffs’.lands, the Power Company would have no right to injure the plaintiffs’ premises by the construction of a dam of greater height. An estoppel presupposes that the person sought to be estopped has done some act or made some declaration upon the faith of which the party .invoking the estoppel has acted to his prejudice or detriment. Perkins Lumber Co. v. Thomas, 117 Ga. 441. The facts of the present case do not involve the doctrine of estoppel. The terms of the interlocutory order were as favorable to the plaintiff in error as the facts justified. The effect of this order is to preserve the status of the parties until the extent of the easement claimed by the Power Company under the deed from Watkins to Phinazee can be judicially ascertained. The order further stipulated that the Power Company might anticipate this judicial ascertainment of its right to back water, by instituting condemnation proceedings in advance of the trial, and that such condemnation proceedings were not to affect its contention as to its water privileges set up in its answer, but that the proceedings of condemnation should be ancillary to the petition and answer before the court. The foregoing disposes of all the questions included in the case which were argued in the briefs. Judgment affirmed. All the Justices concur, except Beck, J* disqualified.