14 Wis. 473 | Wis. | 1861
By the Court,
We concur in the main in the principles and doctrine laid down by the circuit court in the clear and able opinion given on sustaining the demurrer to the complaint in this ease. In one respect the circuit court may have fallen into an error, in supposing that even if the complaint showed an unauthorized obstruction and detention of the waters of the stream by the respondents in their mill and race, it would not then present a case for an injunction. The court seemed to think that the only remedy the appellant would have would be an action for damages sustained in consequence of such unauthorized detention of the waters, but that no injunction would be granted to prevent in future the unlawful act. And the reason assigned was, that it would be difficult to frame an injunction which would
The complaint evidently proceeds upon the theory that the rights and privileges of the respondents to the beneficial use and enjoyment of the water had been to some extent abridged and made subservient to those of the appellant by virtue of the grant contained in the coveyance from Mapes to Ford, the appellant’s grantor. But this we consider a mistaken view of the effect of that conveyance. It will be borne in mind that Mapes was the owner of the flouring mill, head-race and water power upon the Ripon mill lot, and that after conveying to Ford a small tract of land below his mill, he made a further grant in the following words : “ together with all the water power on said mill lot below the said Ripon mill and clear of the wheel thereof, said Ford having full access to the said race for all necessary purposes and said Mapes covenanted in said deed that he would “ in no case out of its then said artificial channel turn the water, to the injury of said Ford or his assigns.” The wrongful act complained of is,- that the respondents have “ obstructed the water of said stream at the said race and in the said Ripon mill, above the mills and premises of the plaintiff, from day to day for a considerable portion of the time,
These allegations of the complaint,' taken in connection with the clause in the conveyance from Mapes previously cited, disclose the grounds upon which the appellant bases his right to an injunction. He evidently supposes that by virtue of that conveyance, he has some superior right or title in the water power, or, in the language of. the circuit court, “ that he is entitled, as against the respondents, to have the waters of the stream flow through the héad-race to their mill, and through that mill to his mill and machinery below, with the same constancy and uniformity and in the same volume or quantity as they would flow if the respondents’ mill were not there and the water of the stream were not used in operating the same, and that any obstruction to the flow of the water through said head-race and mill, for using it in operating the mill, or for any other purpose, is an invasion of his rights.” We do not think the words of the grant will bear any such construction. Those words are definite and certain, and ought not to be so extended by construction as to deprive the gtantor, or those claiming under him, of the right to use and enjoy the water in his race and mill according to the clear and well settled rules of law upon this subject, independent of the grant. There is no reason for saying that the rights granted by this conveyance were intended to impair and qualify other rights reserved, and which belong to the grantor. The grant is of all the water power of the lot conveyed, below the said Ripon mill and clear of the wheel thereof accompanied with the right of access to the race for all necessary purposes. This is far from showing an intention to cede superior rights in the water power to the appellant, or to abridge or qualify those previously existing in the race above the mill, and in the mill itself. The grant plainly and clearly relates to the water power below the Eipon mill and clear of the wheel. From the language used in the conveyance, we infer that the appellant’s mill is situated on an
The order of the circuit court sustaining the demurrer is therefore affirmed.