41 Minn. 270 | Minn. | 1889
The rights of the parties depend almost entirely ■upon the effect of the deed of April 11, 1865, from Farnham & Lovejoy to Cutter, Secombe & Carpenter. To aid in the construction of this deed, and to understand the purpose of the grant, it is proper to refer to the character and condition of the premises at the time. Hennepin island, in the Mississippi river, immediately above St. Anthony Falls, derived its principal if not its only value from the water-power appurtenant. Kingsley, the original proprietor of the whole island, first conveyed to plaintiff’s remote grantors all -of the island except the south-west quarter, reserving, however, the right to flow and reflow so much of the western shore up to a designated point (some 130 or 140 feet below the head of the island) as
Such was the situation when, in April, 1865, Farnham & Lovejoy, by the deed referred to, conveyed to Cutter, Secombe & Carpenter (defendant’s grantors) the land upon which the sash and door factory stood, and a piece of land adjoining it on the north; but none of the land thus conveyed in. fee bordered upon the river. This deed, in addition to .the grant of this land in fee, also granted and conveyed to Cutter, Secombe & Carpenter, their heirs and assigns, “the rights, privileges, and easements hereinafter specifically set forth and enu
It is contended that, as the city owns no land abutting on the -river,, it is not a riparian owner, and hence has no riparian rights. This is a mere question of names or definitions, which is of no legal significance whatever in the case. It is entirely immaterial whether the defendant’s rights are riparian or conventional. It has rights for the disturbance of which it has a right of action. It is unimportant whether it be held that the provision in the Farnham & Lovejoy deed in regard to the canal amounted to a division of the stream into two courses, which rendered Cutter, Secombe & Carpenter riparian owners as respects the canal, or — what seems to us more in accordance with principle and common sense — that a riparian owner may grant a part of his estate, not abutting on the stream, and, as appurtenant thereto, a right to draw water from the stream through his land. In either case the result is the same. Cutter, Secombe & Carpenter were grantees of rights which Farnham & Lovejoy had the right to
The only question, therefore, is, what rights were in fact granted by this deed ? The general rule is that a grantee of land or of an easement in land is entitled by implied grant to any easement in the land of the grantor which is necessary to render the land or the easement granted capable of enjoyment, — that a grant carries with it all things, as included in it, without which the thing granted cannot be enjoyed. This rule depends upon the principle that where a grant is made it must have been the intention of the parties that the grantee should have the means of using the thing granted. As the right to maintain this dam is necessary to hold the water in this pond, and hence necessary to the enjoyment by the grantees of the right to draw water from it, it is conceded that the situation of the subject-matter of the deed was such as would, in the absence of any restrictive clause, imply a grant of the right to maintain the dam. But it is contended that, as no such grant is expressed in the deed, it could not pass by implication or intendment, because these'are expressly cut off; and that it cannot be assumed as an appurtenance to the thing granted, because it is not specifically enumerated. According to this construction of the deed, not only had the grantees no right to repair or maintain the dam, but the grantors might have removed it the next day and thus deprived the grantees of all water-power, and rendered their property useless. Under such a view it would be difficult to imagine a more barren and worthless grant than that of the right to construct a canal and to draw water from the pond; for without the dam there would be no pond, and consequently no water to draw. A construction of the deed that would render the grant so comparatively nugatory should not be adopted unless the language is such as to admit of no other reasonable construction. So far from this being the case, the deed bristles all over with provisions indicating .that the parties intended and had in contemplation the continued maintenance of the pond, which necessarily included the maintenance of the dam also. Among the many provisions of this kind are notably that in the sixth and seventh subdivisions, in relation to the
It is claimed, however, that this right of flow and reflow gave no right to build a dam in front of plaintiff’s land and between it and the main western channel of the river. The right of flow and reflow manifestly could not be enjoyed in any other way than by maintaining a dam, and, notwithstanding the familiar rule invoked by plaintiff that -a reservation in a deed in favor of the grantor is to be construed more strictly than a grant, this reservation must be held to include any means indispensably necessary to the exercise of the right reserved. The evident and sole purpose was to create a pond appurtenant to the water-power on the grantors’ remaining land on the west side of the island. This could only be effected in one of two ways, viz.: First, by building a dam «entirely across the river; o.r,
It appears from the findings of the court that this dam, as extended since 1875, is now maintained above and beyond that point. As Farnham & Lovejoy had not this right, and as it is elementary that a grantor cannot convey what does not belong to him, or constitute it a part of or appurtenant to the land conveyed, it follows that no right to maintain the dam so as to flow and reflow plaintiff’s premises beyond the point named in the “Kingsley” deed passed by the deed to Cutter, Secombe & Carpenter. 'Nor has any such right been since acquired by prescription, because, according to the findings of the court, this part of the dam was constructed in 1875, and subsequent to that date. Neither does the fact that plaintiff has subsequently bought out Farnham & Lovejoy affect the rights of the parties in that respect, for, assuming that the land of the latter was subject to such a servitude, the acceptance of a deed of the land'by plaintiff would not attach a similar servitude to other land previously owned by it.
The plaintiff has extended a dam previously built across the east channel of the river, and above the head of the island, into the west channel, a distance of some 750 feet, so as to connect with the dam of the Minneapolis Mill Comp’any, which is built out from the west side
Defendant’s answer was in the nature of a cross-bill or counterclaim, setting up its rights under the Farnham & Lovejoy and Kingsley deeds, and the alleged amount of power it wras entitled to under these deeds; also claiming that plaintiff’s dam, by diverting the natural flow of the water into the pond and destroying its power, was an unlawful interference with its rights, and demanding judgment that plaintiff be enjoined from obstructing the natural flow of the water into the pond, and, if necessary in order to protect defendant’s rights, that plaintiff be required to remove its dam. While both parties • framed their pleadings and conducted the trial upon a somewhat er
Cause remanded, with directions to proceed in accordance with the views expressed in this opinion.