46 N.Y.S. 363 | N.Y. Sup. Ct. | 1897
Black river at the village of Dexter, Jefferson county, is a rapid, nonnavigable private stream consisting of. two branches,, and at and prior to the times hereinafter mentioned separate dams had been constructed across both of said branches and known and hereafter referred to as the north and south dams and branches respectively, which have ever- since been and still are maintained, thereby forming a pond and creating a water power with twelve feet or more of head.
Prior to January 1, 1841, one Dexter and others had become the owners of a large quantity of land abutting upon each side of said river at said locality and also of all the water power -and water rights in said river at said point, subject to the right of the Black River Lock & navigation Company, which .has entirely disappeared, and also to the right of one Solon'Stone to take a certain amount of water from said stream which, upon the other hand,, still does appear herein. Said owners, sometimes known as the Dexter
There is no serious dispute over the fact that by these original owners legal and effective conveyances were made of certain rights; or over the priority and relation to each other of those grants as originally made; or, with two exceptions hereafter treated, about the manner in which those rights so originally granted have by legal chains of title descended to and become vested in undisputed present owners respectively who are parties here.
These various rights and the parties now possessed of them are as follows:
The right known as the “ Solon Stone ” one, and above referred to as concededly superior to all others, was “ the privilege of taking water from the north or little dam * * * sufficient to carry four carding machines'and one fulling stocks.” This is one of the powers about the present lodgment or existence of which a dispute arises, it being claimed by the defendant Rutting upon one hand, and upon the other, it is insisted by various of the parties that it has expired. It will be considered later on.
The next right concededly superior to the extent of its original terms of grant to all others is the one claimed by plaintiff. January 1, 1841, through the owners above mentioned, there was conveyed to the Jefferson Woolen Company certain of the lands so owned by them as aforesaid upon the Black river and concededly covering the same premises now occupied by the plaintiff, and there after and on or about October 1, 1841, the same grantors by perpetual lease conveyed to said Jefferson Woolen Company “ so much water to be taken from the Black river * *' * through the canal or race * * * as shall be sufficient for the uses and purposes of the woolen manufactory' situated upon said premises (referring to the land described in the deed above mentioned) provided that the river * * * under the hereinafter mentioned restrictions shall yield so much water,” subject to the right secured by law to the Black River Lock & Ravigation Company, and the right of Solon Stone for a clothier shop, “ and to-have precedence over all other grants of water op. said dams.”
A distinct and separate chain of title for and of the rights under the above-mentioned lease, as distinguished from the deed of land, is not preserved. Said lease is not mentioned in subsequent grants,
The property and water rights conveyed as aforesaid to' the Jefferson Woolen Company have'passed hy a chain of grants and conveyances to the plaintiff subject to the possible modification based upon two contentions' made here. One of those arises between plaintiff and defendant Nutting as to the present existence of the rights granted to Solon .Stone already mentioned, and the other arises upon the claim by the defendant Leonard' & Gilmore Company, that owing to a certain reservation made in a conveyance by Edgar Leonard and others to one Campbell, dated June 24, 1886, and which conveyance forms a link in the chain of plaintiff’s title, plaintiff has lost and said defendant acquired the prior right to a portion at least of the water power originally conveyed to plaintiff’s grantor. -
The next rights in point of precedence and superiority are part of those held by the defendants Osborne & Cook. They come through a perpetual lease made to' one Abel Davis, which in terms antedates, the conveyances to plaintiff’s grantor but is expressly made subject thereto and to the rights thereby conveyed. They are described as the right té so much water as shall be sufficient to move the ordinary machinery of an oil mill, but in no event to exceed what will flow through an aperture ten feet long by six inches wide at the rate of 180' feet 'per minute. It seemed to be conceded upon the trial that the Word “ minute ” should he “ second.” In times of slack water the owner of this power is required “to shut down his gate before Solon Stone * * . * and Jefferson Woolen Company, but no such demand shall be made while the water runs over the main dam.” These same defendants are vested with another right which is subject to that of all the other parties hereto and only to be taken from the surplus waters after satisfaction of their rights, and is to be water “ sufficient to drive three central discharge wheels of six feet diameter each.”
The remaining rights of' the defendants are all posterior in date of grant to- those above mentioned given to Solon Stone, to plaintiff, and to.Osborne & Cook, through Abel Davis, and in each ■
Those upon the north dam and branch are:
St. Lawrence Paper Company.— The right “ to use nine cubic feet of water, or so much as will pass through an aperture three feet square under all the head that can be obtained, to be taken from the south end of the dam across the north channel of Black river, through a well-secured and tight flume or bulkhead, and used upon the premises hereby granted.”
Henry Binninger.— The right is conveyed by two chains of title to draw two and a half and two cubic feet respectively “ from the north end of the dam across the north channel through a well-secured and tight flume or bulkhead from the flume.”
Leonard & Gilmore Company.—-The deed describes certain land and adds “ with all the water power rights attached subject to all the reservations of water contracted to Simeon H. Brown and not to exceed four and one-half feet, cubic measure.”
Upon the south dam ahd branch it is conceded that the ownership is as follows:
Jones & Hunter.— Hine cubic feet at the south end of channel, less three feet now held by defendant Young.
Frontenac Paper Company.— Hine cubic feet, north end of channel.
Young.— The right “ to use * * * three square feet of water, or so much water as will pass through an aperture three feet long and one foot wide, under all the head that can be obtained.”
The conveyances of the various rights held by the parties hereto respectively, except plaintiff and defendant Osborne & Cook, of their rights to surplus waters, it will be observed, are of definite quantities measured in most instances by the size of the aperture through which the water is to pass. The obligation is also imposed of conducting the water conveyed through flumes which are tight and well secured. Out of these grants and upon the general facts-above referred to three questions have arisen to which most of the evidence and arguments of the parties have been addressed, two of which have already been briefly referred to.
They are as follows:
1. Is the Solon Stone power now vested in defendant Hutting, or extinguished?
3. Is plaintiff,- by the terms of its paper title, prescription or otherwise, entitled to the use of all the water claimed by it herein-before and superior to the rights of the other parties hereto; or, is it claiming greater water rights than it is entitled to?
I will' consider these questions in the order stated.
1. The Solon Stone Power.
In 1831, and before the creation or grant of any of the other water rights - herein involved, there was conveyed to Solon. Stone the privilege of taking from the northerly dam “ to the first-mentioned piece of land ” described in the grant, water “ sufficient to carry four carding machines and one fulling stocks, but for no other purpose whatever,” etc.
The land in question is now concededly owned by the defendant Hutting, and the question is litigated whether the power has also passed to her or has ceased to exist. I do not understand it to be claimed that it has passed to any other party, except as this being the superior of all rights, if the defendant Hutting lias not acquired it with the land to which it belonged there would be so much more water for the remaining owners.
The decision of this question so raised- is dependent upon the following facts, which I regard as established by the evidence, many of them without any dispute.
The water power and land to which it pertained, so granted as above, to Solon Stone, by a chain of conveyances became vested about March 27, 1865, in one Maghee. Prior to Hovember 15, 1867, Maghee had also- become vested with another parcel of land and water power, being' substantially the ones now owned by plaintiff. Being such owner of these separate properties, he by deed, dated Hovember 15, 1867, conveyed to one Joseph Hutting (to whose rights the defendant Mary has succeeded) the same land as was conveyed to Solon Stone, by metes and bounds. The deed made no specific reference either by way of reservation or grant to the water power,' containing simply the ordinary clause “ Together with all and singular the tenements, hereditaments -and appurtenances thereunto belonging or in any wise "appertaining * . * * and also all the estate, right, title, interest, -dower, right
Subsequently, and about March 8, 1884, the executor of the above-named Maghee conveyed to one Camp the lands and water rights now owned by plaintiff, but which do not include the lands to which the Stone power pertained, and also the following, which is conceded to refer to the water power in question: "Also all the reserved Water rights acquired by the purchase of mill and water rights of Charles L. Leonard * ’ * * and afterward conveyed to Joseph Rutting,” etc. A chain of title runs from Camp to plaintiff, which contains and includes this purported grant of "reserved ” water rights. •
The real estate to .which this Stone power related did not border upon the river or dam, the water being conducted to the mill by . artificial channels.
■ Down to, and at the time of the conveyance by Maghee to Rut- . ting, the mill to which this water power related-seems to have- been used solely as such. Its use for all of the purposes to which the water power, by the terms of the original grant, was applicable had not been continued, there being no carding machinery there. Later some of the rooms in it were used for living purposes, but to a greater or less extent the use for milling purposes has always been continued. The same wheel and flume are there now as originally. The channels by which the water is conducted to the mill are and at the time of Maghee’s conveyance were open and visible. ;
Under all of these circumstances I think that the use of this water power or right, at least for fulling purposes, was so essential • and incidental to the reasonable and intended enjoyment of the property at the time conveyed to Rutting, that it passed as an appurtenance without words of specific and express description and conveyance. Spencer v. Kilmer, 151 N. Y. 390.
And that such transfer is not impaired by the fact that the land was described by metes and bounds. Ibid. 396.
Or by the fact that the water power was not derived or taken from lands owned by the grantor himself, he being the conceded owner of the power and in position to transfer it. Green v. Collins, 86 N. Y. 246.
The cases of Parsons v. Johnson et al., 68 N. Y. 62, and Longendyke v. Anderson, 101 id. 625, cited by the counsel for Leonard
It would appear that- this power is in the somewhat inequitable ' position ■ of having refused to contribute its 'assessment for the expense of building the present dams. Under the conditions of its grant, however, this does not seem to furnish ground for its forfeiture, but the basis for other action or relief not asked here.
2. The reservation claimed hy Leonard & Gilmore Company as against plaintiff of certain water rights.
Prior to August 6, 1872, one Huntington became the owner of certain" premises now owned by the above-named Leonard & Gilmore Company, and in connection with such ownership he became the owner of one-half óf a certain grant of water originally conveyed by one Dexter and others to Nathan W. Brown, and which entire right was described as the right “ to use nine cubic feet of water or so much as will pass through an aperture three feet square under all the head that can be obtained, to be taken from the north end of the dam across the north channel of the Black river, through a well-secured and tight flume or bulkhead, and from the race and flume passing from the canal'across Lock street northerly; the said water to.be used upon the premises hereby granted.” (And which premises were those owned by Huntington • as above stated.)
On or about August 6, 1872, said Huntington conveyed to one Edgar Leonard the premises and water power above described.
On or about November 5, 18.53, one Maghee hád become the owner of the premises upon which plaintiff’s factory is situated and of the water rights running in the chain of title with said premises, and which water rights, whatever their other limitations were, were prior to those conveyed to Huntington as above. These premises and these superior water rights last described had, prior to 'June 24, ■1886, duly passed to Edgar Leonard, George E. Leonard, James A: Gilmore and "William E. Leonard, and these last-named persons on or about June 24, 1886, made a conveyance of said premises and water rights to one' Campbell, through whom plaintiff’s title is
In deciding this question so raised I have reached the conclusion urged by plaintiff, namely, that this clause was intended to prevent any possibility of embarrassment to Edgar Leonard in his owner-" ship of the Huntington power by the deed which he and his associates executed to Campbell, and which was manifestly intended to cover other property and rights. This conclusion seems to. me to be more in accord with the circumstances and with the language used than the other.one. Edgar Leonard was the owner of this power to draw four and one-half cubic feet of water from the north end of the short dam across Black river to the shop and.factory, situated on the premises conveyed by Joseph Huntington. This being so he and his associates executed the deed to Campbell which, after describing the land, canal and waste-weir to be conveyed, contained this clause: “ Together with the hereditaments and appurtenances and all the machinery now in said factory, and all the estate, right, title and interest of the party of the first part in and to the. same and the reversions and remainders thereof, including all the rights of the party of the first part to the use of the %oater from the pond and to convey the samé and use the same in operating said factory as fully and as amply as the same are. now owmed or 'employed by the parties of the first part.” . As I have said, it was concededly the intention of the first parties in' that conveyance not to convey the Huntington power, and I can readily understand how the person drawing that conveyance might reason that the language already referred to and quoted would not convey it, but that still, as a matter of precaution, it would be well enough "to put in a clause expressly stating, in substance, that it was not intended to so convey it. And hence we have this clause in question which makes the conveyance subject to tile j’ight of Edgar Leonard as a right then actually existing and held by him. and which right, because it did actually exist, and, therefore, was defined and described by its actual existence and usage and enjoyment, was described in the clause in the very informal way as the right to draw certain water. The description of the right as it then existed for so brief and informal language is substantially correct. It is mentioned as the "right at all times to draw a certain quantity of watery and as matter of fact, the right was at all
A consideration of the deed itself containing this clause supports the construction now given. By the first part of it (taking into account the references to prior conveyances and rights then enjoyed by the grantors) it conveyed to plaintiff’s grantor the lands in question and the water rights going therewith as superior to the Huntington power, because, concededly, the grantors in that deed held the water rights, subsequently conveyed by Campbell superior to the Huntington power, and they conveyed by the first part of their deed all the rights and estate which they held. It would be somewhat inharmonious then to place in the deed a subsequent brief clause to the effect, as claimed by defendants, that it was not really intended to convey a superior estate therein fully dscribed, but as a matter of fact an estate which instead of being superior should to a large extent be inferior to other rights. On the other hand, it is quite in accordance with the first part of the deed, that this clause in question should be inserted, saying, In effect, “ But this estate already granted is not in any manner to interfere with the other and Huntington power held by one of the grantors.”
Some acts of the parties have been referred to as sustaining the construction claimed by defendant, and special attention is called to the fact that in 1891 the plaintiff executed with Leonard and others a lease of the four and one-half feet of water power now claimed to have been reserved to Edgar Leonard. I do not, however, regard this act as especially significant or helpful upon this
There is one act which seems to be significant if that effect is to be given to any of the transactions of these parties. In 1890, Edgar Leonard executed to himself, James A. Gilmore, George E. Leonard and William E. Leonard, composing the defendant’s firm of Leonard, Gilmore & Oo., a conveyance of the Huntington property and power, in which no reference is made to the so-called reservation clause hereinbefore referred to or to any rights claimed to have been acquired" thereunder. It very likely is true, as claimed by defendant’s counsel, that if the Huntington power had been made superior to .plaintiff’s rights- such superiority would have passed with the other appurtenances under the deed if nothing specifically was said about it. But the trouble with that theory is that Leonard not only did not say anything about conveying a newly-acquired superiority or right, but by the terms of his convey- '
3. The amount of water to which plaintiff is entitled.
By the terms of the grant to plaintiff’s predecessor, the Jefferson Woolen Company, the latter acquired the'right to use “so much water as shall be sufficient for the uses and purposes of the woolen manufactory, situated upon said premises (those in question), provided that the river under the hereinafter mentioned restrictions shall yield so much water; the said race to be kept in good repair by the party of the second part (the woolen company) and the water to be drawn through tight and well-secured flumes and bulkheads and to be used in an economical manner without unnecessary waste.” As already indicated this right was superior to all of those represented here except the “ Stone ” power, and, in my opinion, has passed unimpaired to plaintiff.
We are, therefore, to measure the quantity of water which plaintiff can draw and use by the quantity which at the time of the grant in question was “ sufficient for the uses and purposes of the woolen factory.”
It is probably needless to remark that the solution of. this question and the application of this measurement have been perplexing and unsatisfactory to an extent which neither the quite voluminous evidence nor the elaborate and painstaking arguments of the counsel have been able to entirely remove.
A large amount of scientific and theoretical evidence was given which would quite plainly lead to certain conclusions, certain facts being given or, as was frequently done, assumed. But, after all this, when consideration is directed to the question how much water was “sufficient for the uses and purposes of the woolen manufactory,” as it was operated upwards of sixty years ago — the conceded test of plaintiff’s rights — it becomes necessary to have actual facts and not theory. These, not through any fault of
ETo one upon any side has attempted to describe by the direct measurement of cubic feet or gallons, the quantity of water which was used by plaintiff’s predecessor. The attempt has been made to measure the relative quantities of water used at different times by reference to and description, of (1) The number and.size of water wheels employed; (2) The amount of horse power developed and of machinery operated by the water power in question. Considerable evidence has been given upon these .subjects for the purpose of showing that plaintiff does or does not Use more water than was conveyed by the terms of grant already quoted.
. There are difficulties and imperfections in these methods of test even when the actual facts are determined from the very conflicting evidence relating to them. The size and even the number of wheels used in the mills now owned by plaintiff at different times are not necessarily a correct index of the relative quantities of water used at those respective times, for it seems to be conceded that with the advance in the science of manufacture larger or. more wheels need not now necessarily require more water for their operation than smaller or. a smaller number of wheels did. So again the mere fact that more horse power is developed and machinery used in plaintiff’s mill now than formerly does not of itself indicate a greater use of water. For independent of the greater efficiency of some wheels over others in utilizing the same quantity of .water it is conceded that the same wheel with the same quantity of water will develop horse power increasing in proportion to increase in the fall or “ head ” of the water. The evidence of these details necessary to make the wheels used,, the number of horse power developed or machinery moved at some time a correct measure of the quantity of the water then used as compared with the volume employed at another time when different results in the way of motive power have been obtained has been both unsatisfactory and contradictory. ■ • I do not remember that but one witness attempted to give the number of horse power developed in the early days of the mill. The evidence upon that subject was not very convincing. Moreover, while there are said to have been three wheels employed at that time, very little proof was given in regard to those details necessary to an intelligent comparison with other periods of the' character and efficiency of the wheels —
At one time, under the management of Mr. Hall, the number of some of the machines in the mill was increased As already stated, this would not necessarily mean an increase in the amount of water used, and naturally we find one line of evidence that this increase in machinery did not increase the quantity of water used, and another line quite as positive that it did. I doubt if any of the witnesses spoke upon the subject as the result of any really accurate or reliable measurements made at the time.
- There is another difficulty about this measurement of water used by the horse power developed now and originally. Outside of the water which went into, and, therefore, in any event, could be measured by horse power, the original grantee of this power used water for “ wash ” water. Some of the witnesses say that the quantity so used was very large, I think one-half of what was employed for developing power; others that it was insignificant in amount. Ho accurate measurement is given or was made by any of them.
With the uncertainties and embarrassments thus attendant upon the methods of measurement by number of water wheels used, power developed or machinery moved, as above considered, I have concluded to be guided by another test which, while perhaps less scientific, is quite as reliable in this case and certainly more simple.
Upon all of the evidence I regard it as quite satisfactorily established that the factory now owned by plaintiff and the machinery therein as maintained by its predecessors required for a full and complete use and operation that" at times the water in the pond should be accumulated to the crest of the dams; and that other owners of power, succeeded now in some cases at least by defendants herein, respectively, recognized and acquiesced in this use and enjoyment. Many witnesses, speaking of various times and covering altogether a period reaching back to the very early period of the mill, have by their testimony sustained the claim.
This then, would be a simple method by which to measure the quantity of water granted to the Jefferson Woolen Company and the extent of plaintiff’s rights as its successor under that grant — that it should when necessary be entitled as against the-subordinate power owners to have the water accumulate to the top of the dams. This also would be a just and proper test provided the height of the dams and the size and capacity of the canal and flume
The evidence is, without substantial dispute, that the- flume or' canal through which water is taken from the pond to the mill from the date of construction to the present time, has been and is practically unchanged. Much of it is constructed through rock and there is especially no evidence to indicate that certain cross-sections. of it, which of course limit its capacity of water flow, have ever been changed or enlarged. In fact it would seem that through the efforts made to stop leaks in it the amount of water which might find through it an escape from the dam has been- diminished. So». far as the dams are concerned, I do not think their height has been continued just as it originally was. With the continually increasing value of water power at the place where these rights exist and the probably diminishing supply of'water in proportion to the demand, I think that all of the power owners, at least the larger ones, have been strenuously endeavoring to perfect and utilize to the utmost their rights, and that possibly, in some instances, there has been an unintentional increase of one right at the expense of or with encroachment upon another one. The dams as originally constructed at this point were concededly crude and imperfect in their construction; they were leaky and not so firm and substantial as'to withstand at all times the’pressure of water. . They were built over from time to time, .the last occasion being the year 1888, and since that time the top of one or more of them has been leveled and “ trued ” up. I do not think that there was any intention upon the part of anybody to- build them in excess, of the height established by preceding dams, nor do I think that they were built to any such excess of height as claimed by some of the witnesses. The fact that they, were built by concert of action amongst the different power owners and that many of the latter were present more or less during the construction would indicate that there was no very great deviation from proper lines, and in my judgment an allowance of six inches upon the dams as they now stand would, be sufficient to cover the amount of height increased and gained over
Costs are allowed to plaintiff as against all the defendants who have appeared herein except the defendant Rutting.
Ordered accordingly.
