Risien v. Brown, No. 6021

No. 6021 | Tex. | Jan 22, 1889

Hobby, Judge.—

This suit was brought in December, 1885, by the

plaintiff Brown against Bisien to determine the riparian rights of the parties to McAnelly Creek. The plaintiff alleges that on the 1st day of January, 1877, and long prior to that time and since he was and is the owner of the land described in the petition as situated on the east bank of said creek, consisting of about 500 acres, and is the riparian proprietor of the original source of said creek and all of its water in its natural and regular Sow and entitled to the exclusive possession of the same from its source to its mouth, for all reasonable and domestic purposes, and for the purpose of converting it to use by artificial means, for the purposes of using it commercially, domestically, and as a power to run machinery of all kinds by banking, damming, and all other means. That the defendant Bisien, on January 1, 1877, entered upon said premises- and erected a dam extending from bank to bank, including both of the natural banks of said stream, and has converted and appropriated both banks, bed, channel, and water of said stream to his own use in various-ways, as a means power, and force to run machinery and selling in specified quantities said water, and has placed in the natural bed and channel of said stream a hydraulic ram and other obstructions; all of which, it is alleged, has been done by the defendant Bisien without the acquiescence and consent of the plaintiff, except by permissive accommodation up to about the 1st day of April, 1885, since which date he has committed such acts and trespasses and conversions without plaintiff’s consent and against his protest. Praying for a recovery and general relief.

Bisien answered denying Brown’s right as claimed by him; alleged ownership in himself of a tract of land on the west bank of the creek when the dam was erected; asserted rights to the waters of the stream as a coproprietor with Brown; alleged the latter’s acquiescence in the building of the dam with full knowledge of all the facts connected therewith, and his encouragement of him, Risien, so to do. He also -pleaded that after using the dam erected in 1877 for several years- it became unfit to meet the demands made upon him to supply water, which fact was made known to Brown, who consented to an extension of the privileges previously granted and encouraged him in the erection of a new and permanent dam in the same place, and encouraged him to enter into contracts to supply parties with water, which contracts were to run for a number of years and had not expired, and that Brown had encouraged parties to enter into said contracts, and he was therefore estopped from interfering with the use and enjoyment of said dam at least until the expiration of said contracts, if not absolutely, and until he (Risien) had been compensated for the money and labor expended by him in connection therewith.

The leading questions in the case involve, first, the construction of the deed to Brown from McAnelly, which it is contended vests in him the exclusive rights to the waters of the creek as alleged in the petition; second, the law of estoppel, under the operation of which it seems the rights of the defendant Risien depend. McAnelly was the original owner of the land on both banks of the creek from its source to its mouth. On the 10th day of April, 1866, hemxecuted to Brown a deed conveying 500 acres of land, which embraced all of the land on the east bank of the stream, crossing it á short distance above its mouth and including a small part of the land on the west side. This deed in addition to the usual language employed in similar instruments contained the following clause: “And I hereby convey unto said J. H. Brown, his heirs, and assigns all the rights and privileges of using the waters of said McAnelly Creek, which I have heretofore possessed and which until now I have reserved in all conveyances of land on said McAnelly Creek, for the purpose of erecting machinery up to R. D. McAnelly’s original boundary line.”

Two conveyances of land had been made by McAnelly near the source of the creek prior to the deed to Brown. In one of these, the conveyance to Williams in 1860, this reservation is made: “Except the extensive (probably the word ‘exclusive’ was intended) control of the water and the privilege of banking on said land conveyed in said creek up to starting point of said two-acre tract of land.” “The extensive control of the water,” must have been a right existing in McAnelly at the time of the execution of the deed to Brown, and which he refers to as “heretofore possessed, and which until now I have reserved,” etc., and together with “ all the rights and privileges of using the waters of said creek,” he assigned to Brown. This would seem to be the obvious meaning of the language contained in the clause in the deed to Brown, when construed in connection with the exception or reservation in the prior conveyance to Williams. If then McAnelly was clothed with the-right to the “extensive control of the waters of the creek” which he had reserved in the deed to Williams, this right would pass to Brown, upon the principle that all the rights and privileges possessed by the grantor at the time of the conveyance would vest in his grantee unless it appears from the deed that less than these were intended to be conveyed.

It is a familiar rule in the construction of instruments of this character that effect should be given to every part thereof if this can be done. Hancock v. Butler, 21 Texas, 816.

This principle would be violated, and the clause quoted granting to Brown “all'the rights and privileges of using the waters of the creek heretofore possessed and until now reserved,” etc., would be inoperative and without meaning if the deed from McAnelly to Brown covers only such riparian rights to the middle or thread of the creek as would be incident to the ownership of land on the bank thereof, because such riparian rights would be the legal effect of and pass by the deed without the aid of this clause.

There are contemporaneous facts in the case supporting the construction of the deed that it operated to create an easement in Brownes favor. He purchased*the land with the intention of erecting and operating a dam across the creek and to control the water below, and paid an extra consideration for this purpose.

That the language of this clause as understood and interpreted by the-grantor in the deed, McAnelly, conveyed greater riparian rights and privileges than would be ordinarily incident to the ownership of land on the bank of a stream, is evidenced by the subsequent conduct of Mc-Anelly in making the reservation in the deed to Rogan, executed in 1868, and by which instrument he conveyed all of his land remaining on the creek. This tract consisted of about 12 acres on the west bank of the stream. At the time of the execution of this conveyance to Rogan he mentioned to him the “reservations” he had made in the deed to Brown, and then inserted in the Rogan deed the following: “I hereby reserve to-myself the privilege of banking water up the said creek for the purpose of erecting machinery.” This could not have enured to the benefit of McAnelly, as it was the reservation of a right he could not exercise by reason of the fact that he was then divesting himself of all title to land on the creek.

The conveyance previously made to Brown of 500 acres and that to Rogan of 12 acres embraced all of the land on the creek. The most reasonable explanation of the reservation in the Rogan deed is that it was made by McAnelly to avoid any claim by Rogan which he could have made against McAnelly under the terms of his deed but for this reservation or exception. The deed from McAnelly to Brown of April, 1866, we think conveyed to the latter title to the land therein described to the. middle or thread of the creek. In addition to this the clause we have referred to, read in the light of all the facts and circumstances disclosed by the record, conveyed to Brown the right and privilege of using the waters of the creek and of controlling the same for the purpose of erecting machinery, and conveyed also to him the right to use the waters of said creek by the erection of a dam across the same, although it should become necessary in erecting such dam to use the west bank of the creek, owned by another person.

The facts which the appellant Risien claims operate as an equitable estoppel and preclude the recovery sought by Brown are that Brown authorized and permitted him to erect the dam in 1877 and to utilize the water of the creek. This permission or license was to continue for such time as suited Brown’s pleasure. Under this license Risien erected a dam in 1877, which he used for several yearsv In 1880 Risien entered into contract with the county commissioners of San Saba County and many other persons to supply water from the creek. Brown knew that Risien had made these contracts, assisted him in obtaining some of them; was himself a subscriber to a contract to pay Risien a small sum annually to furnish water. These contracts were to remain in force for about five years. To carry out these contracts Risien erected in 1880 a new, substantial dam, obtaining from Brown material with which to construct it. After the expiration of these contracts Risien, in the spring of 1884, entered into other contracts of a similar character with numerous parties to supply water. These contracts were to continue and remain in force for several years. Brown knew that Risien had made these contracts, and induced several parties to contract with Risien, as he had previously done in 1880. The cost of the dam, including appellant’s labor, is estimated at about $575, and the cost of laying the pipes and other apparatus to supply the water was about $1000. The income Risien derived from the water is estimated at about $65 per month.

The remaining question to be disposed of is, whether the acts or conduct of Brown were such as to call for the application of the doctrine of estoppel.

An equitable estoppel, or estoppel by conduct, it is said “ consists in holding for truth a representation acted upon, when the party who made it seeks to deny its truth and to deprive the party who has acted upon it of the benefit obtained. The primary ground of the doctrine is that it would be a fraud to permit a party to assert what his previous conduct had denied when on the faith of that denial another or others have acted. It is not necessary that the fraud should be intended, but if it is the effect of the evidence set up it is the same in its operation.” Bigelow on Estop., 476; Page v. Arnim, 29 Texas, 71. If Brown, by a course of conduct ór actual expressions, so conducted himself that Risien might reasonably infer the existence of an agreement or license, whether so intended or not, the effect would be that Brown could not subsequently gainsay the reasonable inference to be drawn from his conduct. Harrison v. Boring, 44 Texas, 269.

Brown had encouraged and assisted Eisien by supplying him with material to erect the dam in 1880, and had aided the latter in obtaining contracts to supply water to the county and numerous persons. It is true that this was with reference to the contracts which expired in 1885.

But when Eisein, with Brown’s knowledge, had made and was entering into other contracts, in the spring of 1884, of a like character, to continue several years, the latter encouraged Eisien by his conduct in-inducing several parties to contract with him to believe that he could operate the dam until the contracts expired.

This conduct, entirely in harmony with Brown’s previous acts, could be reasonably interpreted by Eisen only as an agreement to continue the license or permission to use the dam and water for the purpose of executing these contracts made in the spring of 1884, as he (Brown) had permitted him to execute the contracts entered into in a similar manner in 1880. To allow Brown now to gainsay what his conduct then justified Eisien in presuming he intended would operate as a fraud. Eisien would be unquestionably liable for a breach of any of the contracts to supply water entered into in 1884 through the agency or conduct of Brown. Brown was instrumental in placing him in this position of liability, and it is this feature of his conduct which would preclude Brown from a recovery or from interfering with the use of the dam by Eisien until the expiration of such contracts as were made with his assistance in 1884.

We do not think- Brown is estopped by reason of the permission to Eisien to erect the dam in 1877 and use the water until he desired him to discontinue its use; nor would the knowledge of and acquiesence in the building of the dam in 1880 and the supply of material to Eisien for its erection affect his right to recover. Neither do we think that as a condition precedent to his recovery Brown should be required to compensate Eisien for any part of the dam. The contract or license under which Eisien expended his labor and means was of his own making. The dam and improvements erected by him were built with the full knowledge and recognition of the right existing in Brown to revoke the permission at any time. They were put upon Brown’s land for Bisien’s benefit and not to improve the estate.

Brown not having revoked and not having the power to revoke the license given to Eisien until the expiration of the contracts made by him and heretofore referred to, Brown has no right to recover in this action, and the judgment should be reversed and here rendered for appellant.

Reversed and rendered.

Adopted January 22, 1889.

Judge Acker not sitting.