Lawson v. Mowry

Cassoday, J. There is no dispute but that Mowry was the owner and in possession of lots 21 and 22, and also lots 25 and 26, at the time of making the leases in question. It is urged with much force in his behalf, that, as the south waterline' of the canal, as completed, was at or nearly coincident with the north line of his lots, as found by the court, he took title, by virtue of the lots, not only to the center of the river, but also to the center of the canal, and therefore had the legal right, as riparian owner, independent of, the leases, to draw from the canal, through his lots, into the river, the amount of water mentioned in the leases, for the purposes therein designated, and hence, that his covenants and agreements therein to pay water rent were wholly without consideration. It is true, the court found that when Doty and Reed built the dam and dug the first race and made the plat, they intended to secure the location of the canal for navigation, specified in the existing acts of congress, on the strip marked “ Reserved,” and also to secure a hydraulic power to be used on the lots along between the canal and the river; but it was also found that practically there was no fall in the canal or river on or -against these lots, but that the hydraulic power was produced by the dam at the head of the canal, and that the level of the canal was about ten feet above the level of the river at these lots. The lots themselves were disposed of by Doty for — 234 — a mere trifling consideration. Doty and Reed bad themselves expended about $30,000 in building the dam, raceway and basin near the foot of the canal, and the improvement company several thousand more. It was only the surplus water, not needed for navigation, that could be taken from the canal, through bulkheads and flumes, and used for hydraulic 'purposes, and then discharged into the river. It is obvious that it was the dam, canal, and lock at the mouth of it, altogether as a whole, which created the water-power and artificial chan-* nel for navigation. It was essential, also, that each and every part should be in good repair, in order to secure surplus water not needed for navigation anywhere along the line. If Mowry, as riparian owner of the four lots in question and independent of the leases, could divert a portion of the water from the canal into the river by means of artificial channels cut through these lots, and use the power created by the fall, while passing, for propelling machinery, then it necessarily follows that the respective owners of each of the other thirty lots would have a similar right, to say nothing of the owners of lots lying between the canal and river northwesterly of lot 34, or owners of lands abutting upon the northerly side of the canal. If such lot-owners each had such right, then what was the extent of it? Of course, the right would necessarily be limited to the surplus water not needed for navigation. But, even then, the exercise of it by some would to that extent impair the exercise of it by others. Of course, such surplus waters could be apportioned between such owners severally; but as water, like air, is a constantly moving element, it would seem to require covenants or agreements to regulate the respective rights of parties. But if the right to turn the waters from the canal into the river by such artificial channels is derived solely from such riparian ownership, then upon what theory could one of such owners restrict any of the others in the exercise of a right which he claimed for himself? It is conceded upon both sides that no one has any property — 235 — in any of the particles of water as such, and hence there could be no partition of it by reason merely of the ownership of lots. It is the use of water while passing that gives it value. If its passage at a given point is by a level plane, then is its use at that point to be confined to the purposes for which it is adapted while in that condition,— as, for instance, navigation,— or may a fall be created by an artificial channel? Were it conceded that the lots extend not only to the center of the river, but also to the center of the canal, and that Mowry had all the rights in the canal and its waters of any riparian owner, then undoubtedly he would have had the right to use- the land in any way compatible with the use of the canal for navigation, provided he did not abridge corresponding rights of other riparian owners. Walker v. Shepardson, 4 Wis., 486; Greene v. Nunnemacher, 36 Wis., 50; Delaplaine v. Railway Co., 42 Wis., 214; Diedrich v. Railway Co., 42 Wis., 248. But would he, as such riparian owner, have the right, by means of an artificial channel through his own lot, to create a water-fall by turning the waters of the canal through the same into the river? Can a person owning land from one stream to another rightfully turn the waters of the one having the greater altitude into the other, by means of an artificial channel through his own land? In Sampson v. Hoddinott, 87 Eng. Com. L., 590, it was held that the detention of water in that case by one of several riparian owners, for irrigation, was such that an action would lie for the injury, and that every proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any material injury to the rights of the proprietors above or below him on the stream. In Wilts & Berks Canal Nav. Co. v. Swindon Waterworks Co., L. R., 9 Ch. Ap. Cas., 451, a canal company, having power to supply their canal with water from the neighboring streams, bought a mill, and turned the mill-stream into the canal. Many years after, the water-works company diverted — 236 — part of the mill stream, and thereby supplied with water a neighboring town; and it was “held that the canal company . . . were riparian proprietors, and had power to prevent the unlawful use of the water by other riparian proprietors, and that the supply of a neighboring town was such unlawful use.” It was also there held that the canal company might sell surplus water. The doctrine of that case was approved on appeal, although the decree was modified. L. R., 7 H. L., 697; S. C., 14 Moak, 86. In Miner v. Gilmour, 12 Moore, P. C. C., 156, Lord Kingsdown stated the law thus: “Every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land.” He also has the “right to the use of it for any purpose, . . . provided that he does not thereby interfere with the rights of other proprietors, either above or below him. . . . He has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury,” In McCalmout v. Whitaker, 3 Rawle, 90, Gibson, C. J., thus tersely states the rule: “The water-power to which a riparian owner is entitled, consists of the fall in the stream when in its natural state as it passes through his land or along the boundary of it; or, in other words, it consists of the difference of level between the surface where the stream first touches his land, and the surface where it leaves it.” And this was sanctioned in Brown v. Bush, 45 Pa. St., 66. In Miller v. Miller, 9 Pa. St., 74, it was held that “a supra-_ riparian owner is liable to the owner of the land below him for every material diminution of the flow of the water by a diversion from the stream, whether for irrigation or other purposes; and this, though no actual injury may have been suffered.” To the same effect are Tyler v. Wilkinson, 4 Mason, 397; Webb v. Manuf’g Co., 3 Sumn., 189; Mayor v. Appold, 42 Md., 442; Tillotson v. Smith, 32 N. H., 90; — 237 — Parker v. Griswold, 17 Conn., 288; Harding v. Water Co., 41 Conn., 87; Gleason v. Manuf'g Co., 101 Mass., 72; Van Hoesen v. Coventry, 10 Barb., 518; Clinton v. Myers, 46 N. Y., 511. No case bas been cited which would seem to autliorize Mowry to. tap the canal merely because his land was contiguous thereto; but, on the contrary, the authorities cited above seem to indicate pretty clearly that, even if he had the rights of a riparian owner in the canal, yet they would not have authorized him to divert the waters therefrom by means of an artificial channel through his lots to the injury of other riparian owners above or below. It was the legislature which gave the authority to obstruct the channel of the river by the building of the dam and canal, and to make use of the' waterpower thereby created for navigation, and the surplus for hydraulic purposes. The water-power thus created by the dam was not necessarily confined to the use of it at the dam. It is common to conduct water from a pond created by a dam by means of artificial channels, in order to make available the increase of the head by reason of the additional fall in the bed of the stream below the dam. The embankment or land between such artificial channel and the bed of the stream is, nevertheless, as necessary to preserve the water-power as the dam itself. It is, in effect, nothing less than a wing of the dam. The canal, down as far as the lock, is in effect nothing less than an enlargement or arm of the pond created by the dam. It is the fall of the water which gives the power, and the power which gives the value for hydraulic purposes. The right to create and maintain the power, as well as the canal, was authorized by legislative grant to Doty, Eeeds and their associates; and, to be rightfully enjoyed by others, it must be derived from them or some of them. By means of the dam, canal, embankment and lock, the power derived from the surplus water could be made available at the lots in question by means of an artificial channel; but — 238 — the right to create such channel and use such power at the lots was not derived exclusively from the ownership of the lots themselves, but reached back to the authority to create and maintain the dam, canal and lock, and to use the surplus water for hydraulic purposes. Any other theory would leave the owner of every dam and water-power at the mercy of every person owning land from the pond above the dam around the same to the river below, and through which an artificial channel could be cut. It would take from the dam, and the waterpower created by it, much of its value, and transfer it, without consideration, to lands in the vicinity. The right given by deed to draw water from a water-power and use it in propelling machinery, without designating the particular land upon which it shall be used, has frequently been recognized by this and other courts. Such right, as acquired by deed or grant, reaches back to the dam, and gives an interest in the power thereby created. Smith v. Ford, 48 Wis., 162-6; Spensley v. Valentine, 34 Wis., 154; Woolliscroft v. Norton, 15 Wis., 198; Noonan v. Orton, 4 Wis., 335; Crittenden v. Field, 8 Gray, 621; Whittier v. Manuf’g Co., 9 N. H., 454. But here the lots of Mowry, as platted, were not intended to extend to the canal. Plat G shows a vacant strip between them and the lands marked “ Eeserved,” and plat H shows a vacant strip between the lots and the canal. It is very evident from the record that neither Mowry nor any one else had any conception that the mere ownership of the lots gave him any right to draw water' from the canal, until quite recently. In fact, the gist of the defense is, that he was mistaken as to his legal rights until recently. To acquire the right to draw water from the canal, and use it in propelling machinery, and then discharge the same into the river below the dam, he procured the leases in question. By executing the leases, he acknowledged that the lessors then had the property, rights and privileges thereby purporting to be granted. To escape from the doctrine of estoppel, applicable in such cases, it is urged that — 239 — Mowry was mistaken in bis legal rights. But we are unable to discover any such mistake, and the long time which elapsed between the making of the leases and the alleged discovery of the mistake, in a matter so valuable to himself, seems to very much weaken the importance of the alleged discovery. It is manifest, not only from the nature and character of the property, its surroundings, and the plats in evidence, but also from the leases themselves, that by the mere conveyance of the lots hy their numbers, there was no intention to transfer to the grantee the valuable water rights afterwards stipulated for by the leases. The intent in such cases, where it is not precluded by the express words of the grant, is always an important subject of inquiry. In Bradford v. Cressey, 45 Me., 13, Rice, J., said: “The intention of the party is always to be sought in the interpretation of deeds, as in other written instruments. If the language leaves that intention at all doubtful, the instrument should be examined and construed, when practicable, by the light of the circumstances which surrounded and were connected with the execution of the instrument.” See Mott v. Mott, 68 N. Y., 246; Babcock v. Utter, 1 Keyes, 410; Hatch v. Dwight, 17 Mass., 289. Construing the conveyance of the lots in question, for the trifling consideration named, in the light of the circumstances which surrounded and were connected with their execution, the intent of the grantors and grantee therein clearly appears to be just what, not only Doty and the Reeds, but Mowry, in effect declared it to be in the execution of the leases, to wit, a simple conveyance of the lots, without any intent to grant any right or privilege in the dam, water-power or canal. As stated, Doty and the Reeds had granted to the improvement company the right of way for the canal, and the right to maintain the same, and all their right, title and interest in the dam —subject, however, to their right to use the surplus water and privileges, and to maintain and keep in repair all flumes, races, bulkheads, waste-weirs and — 240 — other erections for the use of the water; and the improvement company thereby granted to them, their heirs and assigns, all their right and claim then present or prospective in said waterpower and the use thereof at Menasha, and the sole right to use, lease, sell or dispose of all the surplus water to be taken from the dam or any point on the canal. The property, rights and privileges thus designated as belonging to Doty and the Needs, including the leases in question, became transferred to the plaintiff, Lawson, in the winter of 1875-6, as found by the court, and there would seem to be no reason why he should not recover in this action. By the Oowrb.— The judgment of the county court is affirmed.