151 Wis. 82 | Wis. | 1912
The first, second, third, and fourth assignments of error may be treated together, since they involve the controversy over the width of Mill street, and whether the fee in the plaintiff’s lots 6 and 7 extends to the hydraulic canal, so called on the plat.
It is established by the findings and the evidence that the plaintiff is and was-before the commencement of this action the owner of lots 6 and 7 fronting on Mill street, together with 150 inches of water to be drawn from the mill-pond at any point on the lots aforesaid under a head of ten feet, the water to be measured at the conductor where it issues onto the wheel or wheels; that the deed through which plaintiff claims title provides that the parties of the first part are to keep up and maintain and keep in repair the dam at said mill-pond, except when the necessity for such repairs is oc--casioned by the carelessness of the said party of the second
The court also found that in 1855 H. G. Otis Childs and
The foregoing findings, or some of them, are attacked by appellant as not supported by the evidence, and especially it is insisted that Mill street is more than 491[ feet wide and extends to the hydraulic canal, and the title in fee to plaintiff’s lots extends to the canal. We think the finding that Mill street was not intended by the proprietor of the plat to extend to the south line of the hydraulic canal is well supported by the evidence. The figures on Mill street “49J wide” are significant on this point. The fact that the evidence and findings show that while the whole space between lots 5, 6, and 7 and the south line of the canal was used by proprietors of the lots to some extent, it appears the travel by the public generally was upon the 49-|--foot strip along lots 5, 6, and 7. Moreover, it is quite apparent from the established facts that the canal was intended to he and was constructed wholly upon the land of the proprietor of the plat through whom plaintiff claims. Other findings heretofore recited and supported by the evidence show that it was not the intention of the platter that Mill street should extend to the hydraulic canal.
17or is it necessary to consider whether White river or the hydraulic canal is navigable, because in our view of the case the question is wholly immaterial. Mill street opposite lots 6 and 7 not extending to the canal, the fee in such lots stops at the center of Mill street. Of course, since the plaintiff’s lots did not extend to the hydraulic canal, they could not under any circumstances have riparian privileges upon the canal even if navigable, therefore there is no question of riparian rights in the case.
Counsel for appellant rely upon Smith v. C., M. & St. P. R. Co. 83 Wis. 271, 50 N. W. 497, 53 N. W. 550; Mariner v. Schulte, 13 Wis. 692; Smith v. Ford, 48 Wis. 115, 2 N. W. 134, 4 N. W. 462; Brown v. Baraboo, 98 Wis. 273, 74 N.
But it is further insisted under the fifth and sixth assignments of error that if it be held that the plaintiff’s title extends only to the center of Mill street with an easement in the north half of Mill street and the land between the hydraulic canal and Mill street to reach the water power, the judgment is, nevertheless, wrong in limiting the plaintiff’s right to reach the canal and obtain water effectively. True, the defendants are bound to maintain the dam and water power and furnish the plaintiff on his lots with the 150 inches of water called for in the deed, but they have a right as owners of the water power and the land upon which it is maintained to use such property for their own benefit, though not in such manner as to impair the plaintiff’s use of his 150 inches of water which he has a right to use upon his lots 6 and 7 under a ten-foot head.
The court below found upon sufficient evidence that in the fall of 1866 plaintiff’s grantor, Thomas Wells, who then owned mill lots 6 and 7 and appurtenant 150 inches of water, built upon said lots a woolen mill and connected the same with the canal at a point about three feet east of the west line of lot 6 extended north, by means of a conductor or aqueduct in and across the street, through which he conducted water for water power to operate his mill continuously for more than twenty years; that about 1884 said Thomas Wells built a sawmill addition to said woolen mill on the north side thereof and wholly within the limits of Mill street; that the west line of said woolen mill and sawmill was located about two feet east of the waste-gates in the canal as the same were prior to the flood of 1905; that the evidence lays no foundation for any claim of title by adverse possession either as against the public or defendants to any lands lying north of the center of Mill street; that in Tune, 1905, there was a
The contention of the appellant under this head is that defendants are bound to maintain the dam and power substantially as it was when Thomas Wells, grantor of plaintiff, took title in September, 1866; and that upon the established facts the plaintiff’s right to his water power has been obstructed and substantially interfered with, and that the abatement of the new power plant should not have been limited to such part as encroaches upon Mill street; that plaintiff should not be required to leave his own land to tap the mill-pond or the bulkhead, and that full restoration of the canal and water power to its former condition should have been adjudged.
The court below substantially and correctly settled the rights of the parties by the judgment, except that it failed to award damages for the expense of making proper connections with the hydraulic canal in order to reimburse the plaintiff for the extra expense occasioned by the change in the hydraulic canal and the obstructions placed between plaintiff’s lots and the canal, or to provide in the judgment that defendants make the proper changes, connections, and constructions at their own expense and maintain the same according to the terms of the deed through which plaintiff claims title.
The case is therefore remanded with directions to modify the judgment by requiring the defendants to make the proper changes, constructions, and connections in the canal, water power, and land between lots 6 and I and the canal so as to effectively deliver 150 inches of water, drawn from the canal or pond under a ten-foot head, on the north line of said lots 6 and 7 at such point as may be ordered by the court according to the terms of the deed through which plaintiff derives title, within such reasonable time as may be fixed by the court, and, if necessary, further evidence may be taken in order to enable the court to make the proper modification as indicated herein. That the sixth paragraph of the judgment providing that plaintiff have leave to bring and maintain another action to recover the damages he has suffered by the shortening .of the canal and relocation of the gates and other changes in the premises subsequent to the flood of 1905 be omitted from the judgment.
By the Court. — The judgment of the court below is ordered modified as indicated in this opinion, and the cause remanded for further proceedings accordingly, the appellant to recover costs in this court, except that the costs for printing be limited to $50.