Radtke v. Rothschild Water Power Co.

Siebeokeb, J. The plaintiff claims that the trial court erred in holding that the grant included a portion of the bluff referred to in the descriptive part of the deed. The court determined that the words of the description “all of the low lands south and west of the bluff” embraced the part of the bluff between the base of the bluff at the margin of the low lands and the middle line of the bluff. The court so held upon the ground that the rule recognized in cases where the descriptive words of the conveyance designating the line of the property granted as “to the road,” “along the line of said road,” “a line running along the bank of the river,” or “bounded by the river,” and in cases where the boundary line is designated by an object without reference to the ground upon which it rests, such as “trees,” “posts,” “stones,” “permanent fences,” and similar objects, are held to convey the title to the land to the thread of the stream or center of the road, or to the line running through the center of such objects, is applicable to the descriptive part of this deed designating the boundary line as “south and west of the bluff.” "We are .of the opinion that the court erred in this construction of the descriptive part of the grant. The bluff referred to in this description has no analogy to a stream or road in fixing the boundaries to pieces of land, nor does it from its relation to the abutting low lands, its shape, size, and sloping sides, and its marked characteristics, in any way partake of the nature of objects usually designated to fix boundaries in grants of lands regardless of the ground they rest on. It is manifest from the very nature of the physical conditions of such a bluff that the grant was not intended to convey any of the land composing the bluff or on which it rests. The words “all of the low lands south and west of the bluff,” in their ordinary significance, when applied to the locality and subject matter of the grant, show an intent that no part of the bluff was to be embraced in the grant, and the deed must be held to convey no fee to the land composing the bluff nor [276] on which it rests, but that the plaintiff conveyed title in fee to defendant’s grantors to all of the low lands adjoining the bluff and embraced in the description set out in the deed. The plaintiff contends that the court erroneously denied him judgment to recover $400 found by the jury as damages to his lánds from flowing the water against the face and the side of the bluff. Fundamental to this demand is the inquiry, What did the parties intend to grant by the conveyance? Parol evidence of the facts and circumstances surrounding the execution of the deed, if they do not contradict, vary, or modify it, may be received to aid in determining what the writing was intended to express. Lyman v. Babcock, 40 Wis. 503; Klueter v. Joseph Schlitz B. Co. 143 Wis. 347, 128 N. W. 43; Hammond v. Capital City Mut. F. Ins. Co. 151 Wis. 62, 138 N. W. 92. It is well recognized that in ascertaining the intent of the parties as to a descriptive part of a deed, all the parts of the instrument and the locality and subject matter to which it applies may be taken into consideration. As declared in Boden v. Maher, 105 Wis. 539, 81 N. W. 661, “Parol evidence to vary the terms of a written contract is one thing; such evidence to enable the court to say what the parties to a contract intended to express by the language adopted in making it, is quite another thing. The former is not permissible. . . . The latter is permissible and is often absolutely essential to show the real nature of the agreement.” In the light of this practice the trial court properly received evidence to .explain the subject matter of the grant and to interpret the descriptive part of the deed and ascertain the intent of the parties in relation to it. Looking into the situation of the parties, the locality, and the subject matter of the grant as disclosed by the surrounding circumstances, it is manifest that the grant was intended to convey the title in fee to the low lands, as we have heretofore indicated, and that when applied to the physical situation disclosed the grant in277 eludes the right of flowing the low lands and such part of the side of the bluff as is required for the maintenance of the defendant’s dam near Eothschild rapids in the Wisconsin river. It is also apparent that the enjoyment of this right so granted incident to the maintenance of the dam has necessarily caused a raising and setting back of the water in the river and that this causes a flowing of a part of the sides of' the bluff. Under these circumstances and conditions the defendant has acted within his rights, and no rights of the-plaintiff have been violated by this raising and setting back of the water, and hence no claim for damages exists in the plaintiff’s favor. The judgment of the trial court is erroneous in that it is. thereby adjudged that the boundary line between the plaintiff’s lands and those conveyed by the deed in question is “the middle line of said bluff.” By the Court. — The judgment appealed from is reversed,, and the cause is remanded to the lower court with directions, to enter judgment in accordance with this opinion.