Smith v. Moodus Water Power Co.

Park J. On the trial of this case in the court below the plaintiff contended that Jeremiah Smith Jr. leased only his interest in the land described, and that consequently the plaintiff as his administrator was not estopped from claiming the interest in the land which he subsequently acquired from Jeremiah Smith 3rd. We think it is clear that the lease purports to convey the entire interest of the land described in it. The language is, “all the land we the said Jeremiah, Jeremiah Smith Jr. and Erastus Smith own adjoining the pond commonly called Bash-an Pond in said East Haddam, beginning at the highway at the northwest corner of said pond and running a southerly direction by said pond until it strikes Jabez Swan’s land. ” There is nothing said here of any interest in the land less than the entire ownership. The expression, “ all the land we own adjoining the pond,” taken in connection with a description of the land by bounds, must mean that the land described was owned by them; which could not have been said if they .were mere tenants in common of the land with another person. The lease contains a covenant of ownership, and the plaintiff must therefore be estopped to deny that his intestate, with the others named, owned the entire interest in the land at the time the lease was given. Stowe v. Wyse, 7 Conn., 214; Hoyt v. Dimon, 5 Day, 483 ; Coe v. Talcott, 5 Day, 88. We see no error in the charge of the court, that the lease conveyed the right to raise the dam and thereby flow the [399] water upon the premises described in the lease. The expression “ to raise the dam ” implies that there is a dam in existence that may be raised, and applies to the whole dam, to one part of it as well as to another, so that the suggestion of the plaintiff, that the dam at the time, might have been out of repair, or the old one destroyed by a freshet, and that the expression therefore may have been intended to apply to a repairing in the one case, or a rebuilding in the other, does not meet the requirements of the language used. Indeed, if this construction could apply, it would simply show that the expression is ambiguous, and in that case extrinsic evidence would be. required to show in what sense it was tised by the parties. But no such claim was made on the trial. The plaintiff insists that it must have been used in this sense, because the right granted is limited by the phrase .“ as high as the water will rise in said pond. ” And that the term “ said pond ” means the pond made by the dam then exist ing, when capable of flowing back the water to its highest point. But this construction renders the lease inoperative, unless the existing dam set back the water upon the premises of the plaintiff’s intestate higher than the lessees had a right to do, which is not even pretended. The lease purports to convey a right, and it must be construed to have that effect if it can be done without doing violence to the language used. We think it is clear that the term “ said pond ” was used to designate the place where the flowage might be made, and that the power conferred should be limited only by the natural barriers to the water around the pond and the premises described. A pond increased or diminished by raising or lowering the dam is in common parlance called the same pond. We think it is equally clear that the exercise of the power granted is not limited to the Union Manufacturing Company. There could have been no object to be accomplished by such limitation. If the lessors desired to limit the power granted it would have been an easy matter to have done so, but “ full leave and liberty ” is given the lessors to raise the dam for the benefit .of the factory, or for any other purpose for which [400] they or their assigns shall see fit to use the same. It is quite too nice and technical to say that the-power to raise the dam is conferred on the lessees only, but the use of it when raised may be enjoyed by their assigns ; thus making a distinction between the right to raise the dam, and the right to flow the premises by the dam when raised. But this distinction has no foundation, as clearly appears by the habendum of the lease, which is, “ to have and to hold to the said Union Manufacturing Company and their assigns, for said term, to use, and occupy, &c. ” To have and to hold what ? Manifestly the right conferred ; the right to raise the dam for the purposes specified in the lease. We think also that there is no foundation for the claim of the plaintiff that the lease is void because it is a lease by metes and bounds of a part of a tract of land owned by the lessors in common with another party who never executed the lease. The lease does not attempt to make a partition of the land held in common. The lessors profess to own the entire interest in the tract described. The case is simply one where a grantor conveys a greater interest than he owned at the time. It is the ordinary case where a party is estopped to claim that he owned a less interest than the deed purports to convey. Equally without foundation is the claim that the right to raise the dam was lost by the omission of the Union Manufacturing Company and their assigns to raise the dam for a period of thirty-six years. No doubt in certain cases where a right is conferred to be exercised at the option of a party, the right becomes exhausted by one exercise of the right, but this case does not come within the principle, for here the right was never exercised at all until the defendants did the acts for which this suit is brought. Omission to raise the dam cannot be construed into an exercise of the right to raise it. It might be evidence tending to show an abandonment of the right, but not the exercise of it. The right was theirs to be enjoyed at any time. We think too that the plaintiff is wrong in his claim that this right did not pass from the Union Manufacturing [401] Company to Cowdrey, and from Cowdrey to the defendants, under the grant in the deeds of “privileges and appurtenances.” The lease was made for the benefit of the factory privilege. The right is an incorporeal hereditament, and could be enjoyed only in connection with the factory privilege, and is therefore strictly appurtenant to it. This court held, in the case of Frink v. Branch, 16 Conn., 260, that under the description in a deed conveying “ the one equal undivided half of a satinet factory,” together with the appurtenances, that not only the factory building was conveyed, but the land on which it stood, and the water privilege appurtenant thereto. This authority is in accordance with the ruling of the court below. The plaintiff is also wrong in his claim in relation to adverse possession. The fact that the premises in question were enclosed in a lot containing about two hundred acres of land, and that the lot was exclusively used by the plaintiff’s intestate for the pasturage of cattle during a period of more than fifteen years, without any objection and under a claim of right, furnishes no evidence of adverse user. All this is in perfect harmony with the right conveyed. That right was the mere right of flowage, and whatever herbage there may have been on the premises belonged to the lessors as much after the lease was given as before. Suppose a-grant is made of a right of way, and the grantee omits to use the way for a period of fifteen years, and the grantor pastures the land over which the right of way passes. It has been held by numerous authorities that might be cited, that the grantee does not thereby lose his right, for there is no adverse user. Adverse user in this case would consist of such acts on the part of the owners of the soil as would prevent the lessees and their assigns from flowing the land. A new trial is not advised. In this opinion the other judges concurred.