Valley Pulp & Paper Co. v. West

CassOdax, J. We are inclined to think that the court was right in finding that Lake street was a public street, and that it became such by dedication for that purpose by. the defendant and the acceptance thereof by the city. There can be no question but what such dedication can be proved by parol. Connehan v. Ford, 9 Wis., 240. But it does not necessarily follow that the plaintiff owns the fee to the center of the street. The dedication of a highway by user is necessarily confined to the lands actually used. Cahill v. Layton, 57 Wis., 611, 612, and cases there cited. Here the fence mentioned was built by the defendant in 1855, and by him maintained until 1869. The plank road was entirely — 608 — west of it. That was abandoned about 1857, and the public thereupon used the land, which up to that time had been occupied by the plank road, for a public street. That street, like the plank road, was entirely west of the fence, and continued to be up to the time of its removal. Thus the street continued along west of the fence for twelve years before such removal. The fence was still there when the defendant conveyed to Woodward in 1864, and continued to remain there for about five years thereafter. Between that fence and Woodward’s west line, as fixed in his deed, there was a strip of land about nine feet wide running from the bulkhead on the north to the defendant’s lands immediately south of the land conveyed to Woodward. There can be no question but what the title to that strip of land between the fence and Woodward’s west line, as fixed in his deed, was, during the continuance of the fence, in the defendant; for during that time no part of it had ever been used by the public for travel or otherwise. The absence of all such use precluded the possibility of any right being acquired by virtue of such use. The defendant having the title to that strip of land until 1869, it follows that during that, time he also owned the fee of Lake street, or at least the east half of it. Such being the facts, we cannot hold that the defendant lost the title to any of that land merely by the removal of the fence. Nor do we think he lost such title by the mere fact that after the new bridge was built, a few years later, the traveled track was changed, and became a few feet nearer Woodward’s west line as fixed in his deed, in order to correspond with the location- of the south end of the new 'bridge. Nor do we think the defendant lost such title by the fact that a sidewalk was subsequently built about where the fence had been located. Especially is this so, since the defendant owned other lands south of and adjoining the plaintiff’s land, and had reserved a street or private way, along the south line of the plaintiff’s land, and is still the owner of — 609 — whatever surplus water power, there may be appurtenant to Grand Chute island, and appurtenant to the south channel where it passes Grand Chute island, including, the point where it passes lot 1 (being the same premises described' in the "Woodward deed), on which the plaintiff’s mill stands, except what rights others may have acquired under him. These facts are all admitted or proved, beyond controversy, and they clearly distinguish the case from that class of cases in which this court has held that the owner of a lot or piece of land described by metes and bounds, adjoining a public street or highway, owns the fee to'the center of such street or highway, subject to the public-easement. In most of those cases the street or highway existed'prior to-the conveyance, and-hence the deed was necessarily construed with reference to its existence. Messer v. Oestreich, 52 Wis., 684; Whitney v. Robinson, 53 Wis., 309. Here there is no claim of any public user, prior to 1869, of the strip of land of about nine- feet wide, which up to that time-was wholly outside of the street, and.between the fence and Woodward’s west line as fixed in 'his deed. Assuming that by subsequent user there was a dedication also of that strip to the public use as a part of the street, yet such subsequent dedication to the public use merely, and under the facts and circumstances here presented, would not enlarge' the grant made to Woodward several- years before. Such subséquent dedication would not in any way aid in the construction of -the language contained in the former deed. In Pettibone v. Hamilton, 40 Wis., 402, the dedication of Darling place and the alley was subsequent to the acquisi-. tion of title by the abutting lot-owners, but in that case the dedication was specifically for the benefit of such abutting lot-owners. Certainly the case is distinguishable from the facts here presented. We must conclude that Woodward got no title to the strip of land between his west line, as fixed in his deed, and the fence then standing about nine — 610 — feet west of it; much less did he get any title to the fee of any portion of Lake street. Nor do we think the plaintiff got any such title by reason of anything that occurred after the- removal of the fence. It does not follow, however, that either Woodward or the plaintiff was or could have been rightfully barred by the defendant, or any one claiming under him, from free access to and from the land so purchased and Lake street, and also the bulkhead and water power. Such right of free access existed by virtue of the defendant’s grant to Woodward as a matter of necessity. Jarstadt v. Smith, 51 Wis., 96. The land was purchased, as appears from, the deed, for the very purpose of building and operating a mill or machinery upon it. To do that it became essential to pass to and from the land as necessity might require. That could only be done by passing over lands of the defendant. Hence, by virtue of the grant, the defendant, by necessary implication, gave to the grantee, his heirs and assigns, such easements as were necessary for the use and enjoyment of the land and water granted, and for the purposes named in the deed. It follows that, the defendant having acquired from the city the privilege of laying the conduit pipe mentioned along under ground on the strip of land in question, the plaintiff had no cause of complaint except in so far as is hereinafter indicated. At the time of making that deed there was no mill upon the premises thereby conveyed. Upon the faith of such grant and assurance, the plaintiff has built on its land a mill and machinery at a cost of about $40,000. The rights of the plaintiff to restrain the defendant'from laying the conduit pipe, and drawing water through the same from the bulkhead, must be measured and limited by the language of the deed from the defendant to Woodward, and which is literally quoted in the above statement of facts. That conveyance expressly embraced fifteen feet of the south end of the bulkhead, together with the privilege of drawing from — 611 — said bulkhead as much water as said Woodward, his heirs or assigns, might need for whatever machinery might be erected on said premises; and the defendant, in and by the deed, for himself, his heirs and assigns, expressly covenanted and agreed to maintain the water power, with the provisos therein mentioned. In construing this portion of the- deed ijb is urged, that reference must be had to the actual state-of the1 property at the time of its-execution. Such, of course, is the general rule in-the conveyance of specific property where the description in the deed is otherwise uncertain. Messer v. Oestreich, supra; Whitney v. Robinson, supra. . Here there is no uncertainty as to the land described. The survey of that is stated definitely, and there is no doubt about the location of any line. The deed did not leave the title of the entire bulkhead in the defendant, nor merely authorize Woodward, bis heirs and assigns, to draw water from it through the then existing opening of about nine feet in the bulkhead, but actually covered and included a portion of the bulkhead, and expressly declared that the premises, thereby conveyed embraced fifteen feet of the south e.nd of the bulkhead. The defendant, having thus forever divested himself of any and all title to that section of the bulkhead, and absolutely and forever vested the same in Woodward, his heirs and assigns, has thereby forever precluded himself from all interference or dictation as to the kind of gates to be used, or the manner of their construction: provided, always, that the party claiming under that deed shall not appropriate other portions of the bulkhead not included within the fifteen feet so conveyed, nor injure or-impair any other portion of the bulkhead or water' power, nor draw therefrom over or through the fifteen feet so conveyed any more or greater amount of water than was expressly authorized by the deed. > • But'there is still another difficulty in limiting the amount of water to be drawn from the bulkhead to the quantity — 612 — which could have been drawn through the nine-foot opening as it then existed.' The deed nowhere makes, or attempts to make, such opening the measure or limit of the quantity of water to be so drawn, but, on the contrary, expressly stipulates for another and different measurement and limitation. The parties to that conveyance, having thus chosen and adopted, by express stipulation, a standard and measurement of the amount of water to be drawn from the bulkhead, the ceurt is not at liberty to set it aside and in effect make a new deed by formulating, adopting, and injecting into the one made by the parties a different limitation and measurement. It is to be remembered that at the time of making that deed the machinery referred to in the deed was not in existence — certainly had not been erected on the premises. The deed gave the right to draw as much water as Woodward, his heirs or assigns, might need for whatever machinery might he erected on the premises conveyed. The amount to be drawn was thus to be measured by the necessities of the machinery thereafter to be erected. It might be much less or more than could have been drawn through the nine-foot opening which then existed ; but, whether more or less, none could be rightfully drawn which should not be actually needed by the machinery so erected. In other words, the deed gave no authority to draw water for mere waste, nor to be used in running any machinery on other premises, nor even upon the premises Gonveyed, except as might be needed to operate machinery thereon erected. Since the machinery mentioned was to be erected after the making of the deed, it is apparent that there was no standard of measurement in existence at the time of making the deed. Whether, at the time of making the deed, there was any fixed and definite standard of measurement in the contemplation of the parties to the instrument, and, if so, whether such contemplated standard could be proved by parol, may be doubtful under the language employed. — 613 — The amount, however, was not left by the deed unlimited. It could only be drawn through some opening in the section of fifteen feet so conveyed. The sides of the passage-way through which the water was to be drawn could not extend on either side beyond the fifteen feet; and we are inclined to think that the bottom of such passage-way could not rightfully be sunk beneath the ordinary bottom of the bulkhead. Besides, it was necessarily implied in the deed that such passage-way should be properly constructed, and of sufficient strength,'permanency, and durability not to jeopardize the balance of the bulkhead, and so as not to unnecessarily impair the privilege of others having subordinate rights to draw water from the bulkhead. But within the boundary limits thus fixed for thepassage-of the water, there is still another limitation, and that is, the quantity of water which may be needed to operate the machinery which has been or may be erected upon the premises. That limitation may be indefinite and uncertain, depending upon the change of circumstances. For instance, the plaintiff’s mill may be shut down for repair, or for removing old machinery and replacing it with new, or for other reasons. Under any of these circumstances, or in case the defendant has a surplus of water, it is very plain that he would have the right to use it, provided, always, that he use it in such a way as not to impair the rights or privileges thus secured to the plaintiff. Nor do we think that such uncertainty of the limitation, depending upon the necessities of the machinery so erected, in any way frustrated the grant. It is unlike the attempt to convey land by an uncertain description. It is not technically a conveyance of water. There is no property in the water of a river as such. Its value consists in the force and power created while a given quantity is passing from a higher to a lower point. It is the use of the water while running that gives force and consequent power to the — 614 — machinery. It is the privilege of diverting and using within the limitations named, that is secured by the deed. The mere fact that the amount of water which the deed thus authorized to be diverted and used was made to ■ vary and fluctuate with -changing circumstances, did not defeat or frustrate the right thus granted. We must therefore hold that the plaintiff has the right to draw from the bulkhead, over or through the fifteen feet thus conveyed, as much water as -it may need for the machinery it has erected or may erect on said premises, as construed or defined in this opinion. The defendant, his agents and servants, must therefore be restrained from in any way interfering with, obstructing, impairing, or injuring any of the rights or privileges thus secured to the plaintiff under the deed to Woodward; and the defendant, and all persons claiming under him, must be especially restrained from drawing any water through such conduit pipe when laid, or from said bulkhead, at any time when the same will impair or lessen the amount which the plaintiff has the right or privilege of so drawing; and also be restrained from drawing water through such conduit pipe when laid, or from said bulkhead at any time, to such an extent, or in such a quantity, as 'will in any way obstruct, diminish, or lessen the quantity of water which the plaintiff has the right or privilege of drawing under the deed to Woodward, as above construed and defined. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in accordance with the principles stated in this opinion.