Lead Opinion

Haight, J.

This proceeding was instituted by the commissioner of public works of the city of New York on behalf of the city, under the provisions of chapter 189 of the Laws of 1893, to acquire title to Byram pond, a non-navigable body of water in the town of North Castle, Westchester county, and to the lands surrounding the same. The commissioners of appraisal, appointed in the proceeding, made their report, in which they awarded to the claimant Sarles substantial damages for his lands surrounding the pond, but only awarded him one dollar nominal damages for the bed of the pond. Objection was filed by him to so much of the report as awarded him only nominal damages for the bed of the pond. The Special Term sustained the objection and ordered a new appraisal as to the lands embraced within the pond, and, in *143 other respects, confirmed the report. The Appellate Division reversed so much of the order of the Special Term as granted a new appraisal, and confirmed in full the original report of the commissioners.

In the year 1864 one Josiali Wilcox was the owner of a mill on Byram river, through which flowed the waters from By ram pond, and John H. Lyon was the owner of the pond, or of a portion thereof, and of the lands surrounding the same. Under date of June 28th, 1864, John IST. Lyon executed and delivered to Josiali Wilcox a deed, which was recorded in the office of the register, Westchester county, in liber 441 of Deeds, page 298, in which the premises conveyed are described as follows: “ All that certain piece or parcel of land situate lying and being in the Town of Horth Castle, County of Westchester and State of Hew York bounded and described as follows, viz.: Southerly by lands of Ebenezer G. Platt, westerly by land of the party of the first part, northerly by lands of Samuel Augustus Lyon and easterly by land of the party of the first part being all the land on both sides of the By ram Pi ver and Byram Pond that will be overflowed by the waters of Byram Biver and Byram Pond in consequence of the erection of a dam across said Byram River, southerly of lands hereby conveyed of sufficient height to raise the waters in Byram Pond eight feet and two tenths above its present level, and the above described land is conveyed by the party of the first part to the party of the second part only for the purpose of being flowed by said pond, and in case the party of the second part should not use said land for the 2iurpose above named then the party of the first part his heirs and assigns shall buy back the land hereby conveyed at such price as may be agreed upon between the parties to these presents and in case of a disagreement between the parties, then each shall choose a disinterested - person as umpire and the two shall choose a third person and the three persons thus selected shall fix a price on the land which shall be binding between the respective parties to these presents, their heirs and assigns.' Together with all and singular, the tenements, hereditaments *144 and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof,” and so on, fol- ' lowing the usual form of the ordinary printed deed, and concludes with a covenant to the effect that the party of the second part may within two years from that date purchase an , additional quantity of land surrounding the pond sufficient to raise the dam three feet higher upon paying one hundred dollars per acre therefor. Wilcox apparently availed himself of the provisions of this covenant, for a second deed, bearing date the 12th day of October, 1864, recorded in liber 549 of Deeds, page 351, was executed by Lyon to Wilcox, which conveys all the land that will be overflowed, being about two acres, by the waters of Byram river and Byram pond, by the erection of a dam of sufficient height to raise the water in Byram pond twelve feet above the present level of the pond. This deed contains substantially the same description and provisions contained in the former deed, with the exception that it gives the right to raise the water of the pond twelve feet instead of eight feet. The city of Mew York has acquired the rights of Wilcox in the premises, and the claimant, De Witt 0. Sarles, has succeeded to the title of John M. Lyon.

It becomes important, in the first place, to determine who is the owner of the j)ond. If the city of Mew York is the owner, then these proceedings were unnecessary, and the nominal award of one dollar should not have been made. Both parties claim under John M. Lyon, and it, therefore, becomes important to determine the construction that should be given to his two deeds to Wilcox. In describing the land conveyed, it is stated in the deeds as “ being all the land on both sides of Byram Biver and Byram Pond.” It may be conceded that where a tract of land is conveyed by deed, described by metes and bounds, that the title to any lake or pond included within the boundary lines passes with the uplands to the purchaser. It may also be conceded that the conveyance of land along a highway, stream or pond in which the description runs to the highway, stream or pond, the title *145 to the center of such highway, stream or pond will ordinarily be held to have passed under the grant. But when the boundary line is along the side, the edge, the border or the margin of a highway, stream or pond, the parties will be held to have intended to limit the lands conveyed to that within such boundary, and not to that which constitutes the bed of such highway, stream or pond. As, for instance, “ along a stream” means along the center or thread of the stream, while “ along the shore of the stream ” means along the edge or margin of the stream. In the case under consideration the deed conveys the land on the sides of the pond, and not that of the pond itself. It is the land bordering upon the waters of the pond which may be overflowed by the raising of the dam, and not the lands under the waters of the pond already overflowed. It appears to us that the fair and reasonable construction of the language used in the deed would exclude from the conveyance all the lands within the pond, leaving the title thereto in the grantor. (Child v. Starr, 4 Hill, 369; Starr v. Child, 5 Den. 599; Halsey v. McCormick, 13 N. Y. 296; Holloway v. Southmayd, 139 N. Y. 390-413.)

It is now contended that even though the bed of the pond was not included in the conveyance to Wilcox, the conveyance did vest in Wilcox, in fee, a strip of land surrounding the pond, by which Lyon cut off his right of access to and possession of the pond. This brings us to a more minute consideration of the deeds. The formal parts of the deeds are those in ordinary use, containing apt words for the conveyance of the fee to the lands described. They include all the hereditaments and appurtenances thereto belonging, as well as the rents, issues and profits. But when we find provisions in a deed which are inconsistent, the rule is well settled that those provisions which are written or are unusual, or those which have received special attention, will be deemed to express the intention of the parties rather than the printed or formal portions of the instrument.

John N. Lyon owned a farm of two hundred acres which he had purchased from Samuel A. Lyon two years before. *146 In his deed to Wilcox he commences by describing his whole farm, giving the boundaries, and then he limits the amount intended to be conveyed, with the clause, “ being all the land on both sides of Byrain River and Byram Pond that will be overflowed by the waters of Byram River and Byram Pond in consequence of the erection of a dam across said Byram River, southerly of lands hereby conveyed of sufficient height to raise the waters in Byrain Pond eight feet and two tenths above its present level, and the above described land is conveyed by the party of the first part to the party of the second part only for the purpose of being flowed by said pond.” It is thus apparent that but for the provision above quoted, the title of Lyon’s whole farm passed to and vested in Wilcox. But the provision limiting the grant to the lands on both sides of the pond overflowed by water, is inconsisent with the provision desci’ibing the whole farm as conveyed. So also is the provision that the lands are conveyed “ only for the purpose of being flowed by said pond ” inconsistent with the other provisions of the deed, which would ordinarily be construed as passing a fee to the land. These clauses are the prominent and noticeable provisions of the deed. They are its essential features, the real essence of the contract, and evidently they are the result of the deliberate thought and agreement of the parties and express their intention. We, therefore, think they should be given force and effect in preference to the usual formal provisions appearing in the deed.

The fee is the greatest interest that can be granted in real estate. It includes title, the right of possession and the right to use for any purpose which may be lawful. The limiting of the use and purpose of the land conveyed to that only of being flowed by the waters of the pond prohibits the purchaser from making any other use of it. It does not even give him the right of possession. He may erect the dam of the height specified and he may have the waters collected overflow the land, but this is the extent of his rights. This does not constitute a fee. At most it is but a mere easement, leaving the title, possession and use to the grantor, subject only to the *147 right of flowage created by the deed. The circumstances' of this case are not unlike those which may be found on nearly every stream or river throughout the country in which there flows sufficient water to turn a wheel. Mills and mill dams are very numerous, and many grants for the right of flowage have been made by upper riparian owners, and yet not a case has been called to our attention in which it was ever held or claimed that such a grant carried the fee. Our construction of the provision of these deeds is not only sustained by, but is strengthened by the circumstances surrounding the parties at the time they were executed. Wilcox ivas a millowner upon Byram river, below the pond. He was seeking additional power with which to operate his mill. He first procured the right, by the first deed, to erect a dam eight and two-tenths feet high; then about three months thereafter, probably before he had completed the construction of the dam, he procured the further right, by the second deed, to erect the dam twelve feet high. There was no reason why he should go to the expense of acquiring the title to the bed of the pond, or of the fee of the land surrounding it. His purpose was fully satisfied by acquiring the right to construct the dam of that height and have the waters collected flow back upon the lands of his grantor. In the case of Stevens v. Kelley (78 Maine, 445) it ivas held that the' owner of a mill dam on an unnavigable stream, who does not own the bed of the stream above the dam, has only a qualified interest in the flow of the Avater, and the upper riparian owner has the right to possession, use and occupation, subject to the easement of the mill-owner’s right of flow, and 'that the riparian owner is the owner of the ice Avliich forms upon the pond and has the exclusive right to harvest the same. •

It is contended that the provisions in the deeds to the effect that in case" Wilcox should not use the lands for the purposes mentioned, Lyon, or his heirs and assigns, “ shall buy back the lands hereby conveyed,” creates a condition subsequent, in Avhich a fee may vest. Of course a condition subsequent embraced in the deed does not prevent a vesting of the fee, *148 but this is upon the assumption that a fee was intended to be conveyed. If no fee was intended there could be none to vest. But is it a condition subsequent ? There is no forfeiture provided for or any re-entry authorized upon the happening of such event. It is merely a mutual agreement of the parties, of Wilcox to sell and of Lyon, or his heirs and assigns, to buy back that which had been conveyed to Wilcox, upon a price to be agreed upon or settled by arbitration. Wilcox had the right to demand that Lyon should take the same, as well as Lyon had the right to insist upon his right to purchase. The covenants were mutual and could be enforced by either. But whether it may be a condition subsequent or not, it does not appear to us to affect the main question considered as to the interest that the parties intended to convey by the deeds in question.

Upon the argument of this appeal there was an elaborate discussion as to the rule of damages that should be adopted. We do not deem it necessary at this time to enter upon a discussion of that question. The conclusion which we have reached is that the deeds to Wilcox did not convey to him the fee to the lands above the dam, but that it did convey the right to maintain the dam and to flow the waters collected therein upon the land that would be covered thereby; that, subject to this right, Lyon remained the owner of the fee, to not only the bed of the pond but to the lands covered by the flow-age, with the right to the possession and use in connection with his upland, which were not inconsistent with the right of Wilcox to the use of the water as the exigencies of his business might require, and that among the uses retained by Lyon was that of supplying himself and family with water for domestic purposes, the harvesting of ice, etc. The city of Hew York, as we have seen, has acquired Wilcox’s right to maintain the dam and to use the waters collected and stored therein. Bor this Lyon has already received a compensation in the consideration given for the deeds. Sarles is not, therefore, entitled to recover damages therefor. But he had the right to use the pond in connectiop with his upland for the *149 purposes stated, together with the right to repurchase the interest conveyed, as provided for in the deeds; and these rights are real, entitling him to substantial damages upon their being taken from him, pursuant to the provisions of the act under which these proceedings were instituted.

We, therefore, conclude that the order of the Appellate Division should be reversed, that of the Special Term affirmed, and that the costs in this court and in the Appellate Division should be awarded to the appellant; the other costs in the proceeding to abide the final award of costs.

Dissenting Opinion

Bartlett, J.

(dissenting). The deeds to Wilcox, in my opinion, conveyed the absolute fee of the premises described subject to a condition subsequent.

Ho particular form of words is necessary to create a condition subsequent, but the cases hold it must be clearly expressed. (Lyon v. Hersey, 103 N. Y. 264; Upington v. Corrigan, 151 N. Y. 143.)

The premises in question were to be used for flowage purposes, and the deeds provide if not so used then the grantor, his heirs and assigns, “ shall buy back the land hereby conveyed at such price as may be agreed upon between the parties to these presents.” A clause then follows for umpires to fix price if parties fail to agree.

It is a little difficult to comprehend how grantors can “ buy back ” land unless title passed under their conveyance.

I vote for affirmance.

Parker, Oh. J., O’Brien and Werner, JJ., concur with Haight, J.; Gray and Cullen, JJ., concur with Bartlett, J.

Order reversed, etc.