187 Iowa 1384 | Iowa | 1920
The covenant of warranty was “against the lawful claims of all persons whomsoever, including the right of flowage for the use of the mill power at the present height of the dam now built.” The plaintiff acquired this land through mesne conveyances under Nye and Willing, and in this suit seeks to have established the right perpetually to use gravel for the repair of the dam from the strata of gravel beneath the surface soil of land described as follows:
“Beginning at a point in the southeast quarter of Sec
The grant of “the use of the gravel pit to repair the dam now in connection with the said gristmill” gave the grantee the right to remove the gravel from the pit; for in no other beneficial manner might the pit be used. The grant of the right to take gravel from the pit is what is denominated in law as profit a prendre, and is the right to take a part of the soil or the produce of the land. Pierce v. Keator, 70 N. Y. 419 (26 Am. Rep. 612); Ladd v. Smith, 107 Ala. 506. This right, when attached to another estate, is in the nature of an easement, but not technically such. In Goddard’s Law of Easements, page 6, the author points out that:
“An easement is a privilege without profit; a right by which one person is entitled to remove and appropriate for his own use, any part of the soil belonging to another man, or anything growing in or attached to, or subsisting upon his land, for the purpose of the profit to be gained from the property thereby acquired in the thing removed, has always been considered in law a different species of right from an easement, and is commonly called a profit a, prendre.”
Thus, it has been held that a right to take stones from the land of another to mend roads, is profit d prendre, and
“This right of profit d prendre,” as said in Washburn on Easements (4th Ed.), Section 7, “if enjoyed by reason of holding certain other estate, is regarded in the light of an easement appurtenant to an estate; whereas, if it belongs to an individual, distinct from any ownership of other lands, it takes the character of an interest or estate in the land itself, rather than that of a proper easement in or out of the same.”
“Rights to take profits from another’s land may exist in gross, — that is, they may be held by one independently of his ownership of other land, the rule in this respect differing from that usually regarded as applying to easements, unattended with a right of profit. They may, however, be appurtenant to other land, the land to which the right appertains being then the ‘dominant tenement,’ and the land from which the profits are taken being the ‘servient tenement.’ A right of profit, in order that it may be appurtenant to other land, and pass therewith, must be such as to be in some way connected with the enjoyment of the right of property in the dominant tenement, and must be limited by the needs of the latter.” 1 Tiffany on Real Property, Section 336.
In Grubb v. Grubb, 74 Pa. St. 25, Judge Agnew, in the course of his opinion, observed that:
“A right of profit d prendre, which may be held apart from the possession of land, differs therein from an easement, which requires a dominant tenement for its existence. Bainb. Mines, Ed. 1871, p. 237. But a right of profit d
Here, the grant of the use of the gravel pit was as distinctly conveyed for the consideration paid as was the land described, which included the mill site and clearly was appurtenant thereto. Its use was limited to the repair of the dam there located. Jones on Easements, Section 50. In other words, the right to take gravel could be exercised only for the benefit of the particular estate described, and only as prescribed. The grant, then, /created an incorporeal hereditament, appurtenant to the estate to which it was annexed, and passed with it under the .different conveyances. See, as bearing thereon, Phillips v. Rhodes, 7 Metc. (Mass.) 322; Grubb v. Grubb, 74 Pa. St. 25; Huntington v. Asher, 96 N. Y. 604 (48 Am. Rep. 652). In this last case, A, being the owner of land upon which was a millpond, con
In Hopper v. Herring, 75 N. J. L. 212 (67 Atl. 714), Abraham and John Demorest were owners of a tract of land in common. In 1807, they partitioned it, each conveying to the other his one-half interest in the tract in severalty. One of the division lines between these tracts was Pass Kack Brook, upon which was a sawmill and millpond. The mill and all or part of the pond, were upon the land conveyed to Abraham, and in the deed from John to Abraham was this clause:
“The privilege and liberty to get gravel from the west side of the mill dam to keep the same in repair is also granted in this deed to the possessor of the mill.”
The west side of the milldam belonged to the part conveyed to John. In pursuance of this deed, the defendant, holding title under Abraham, entered the land of plaintiff, who held title under John, and took the gravel. On this state of facts, the circuit court awarded judgment for the value thereof; but the judgment was reversed on appeal,
“A barrier to prevent the flow of a liquid; especially, a bank of earth or wall of any kind, as of masonry or wood, built across a watercourse to confine and keep back flowing, water.”
The Supreme Court of Kentucky, in Paris Mill. Co. v. Paris Water Co., 71 S. W. 513, defined a dám as “a structure across a stream, including the abutment on the side next to the mill.” See, also, Penobscot Log Driv. Co. v. West Branch D. & R. D. Co., 102 Me. 263 (66 Atl. 542); Morton v. Oregon Short Line R. Co., 48 Ore. 444 (7 L. R. A. [N. S.] 344, 120 Am. St. 827). Though ordinarily a barrier built across a watercourse to confine and keep back flowing water, the physical structure is not always intended,
“We sometimes hear of fishing or bathing in a dam; and often the water in a dam, meaning in the pond. So, a pond is made to include the dam, even in judicial phrase. Jackson v. Vermilyea, 6 Cow. 677. And grant of a dam is held to include an easement in the pond. Maddox v. Goddard, 3 Shepley 218.”
See, also, Natoma W. & M. Co. v. Hancock, 101 Cal. 42 (31 Pac. 112); Colwell v. May’s L. W. P. Co., 19 N. J. Eq. 245. One of Webster’s definitions is:
“A body of water confined or held by a dam; a mill pond.” Any doubt there might exist as to the sense in which “dam” was used in the deed, is disposed of by the context. The use to be made of the gravel pit is “to repair the dam.” “To repair” presupposes something in existence, upon which to operate. A body of water might be restored, or another body of water replace it, but it could hardly be repaired with gravel. The clause, “Now in connection with said gristmill,” is descriptive of the then location' of the dam. By “now” is meant, “at the present time,” and “in connection with the gristmill” doubtless refers to its use in holding back the water for the operation of the mill. The dam then there was the one intended, for which provision for repair was being made, and the use of the gravel pit was to repair the then existing dam. Appellee argues that the clause has reference, not to any particular physical structure, but to such a dam as was or should be necessary to the enjoyment of the premises for the purposes for which they were intended to be used. In other words, his contention is that gravel was to be used for the repair of a dam, employing the word in a general sense, in that locality, and that no particular dam was intended. If so, the parties to the instrument were not fortunate in the use of language; for'surely it may fairly be construed as identifying the very dam then in
“To ‘repair’ presupposes the existence of the thing to be repaired. Thus, we say the thing needs repairing; the thing is out of repair; and so, when we speak of repairs, we assume that the thing to be repaired is in existence, and the word ‘repair’ contemplates an existing structure or thing which has become imperfect by reason of an actior of the elements, or otherwise; and, when we repair, W« restore to a sound or good state, after decay, waste, injury, or partial destruction, the existing structure or thing which needs to be restored to its original condition; or, in other words, we supply, in the original existing structure, that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be. Reconstruction presupposes the nonexistence of the thing to be reconstructed, as an entity; that the thing, before existing, has lost its entity; and ‘reconstruction’ is defined as follows: ‘To construct again; to rebuild; to restore again as an entity the thing which was lost or destroyed;’ and it is apparent that the legislature meant, by the word ‘reconstruct,’ to rebuild (that is, to construct again the thing which, as an entity, has been lost or destroyed); and the fact that, in reconstruction, some of the material or parts
See, also, Farraher v. City of Keokuk, 111 Iowa 310; Clark v. Martin, 182 Iowa 811; Ellyson v. City of Des Moines, 179 Iowa 882. We have no difficulty in reaching the conclusion that the dam then existing was that for which the gravel pit might be used for the purposes of repair.
“The dam extended 40 or 50 feet west of the northwest corner of the mill, and extended .south and west from the mill about 150 feet entirely across the stream, and then continued west on the south bank of the stream, 700 or 800 feet. The spillway on the dam is on the part running south from the mill, on the part that extends nearly north and south. The spillway did not extend entirely across the stream from the mill to the south bank. About 20 or 25 feet on the north end of the dam. next to the mill was an ice break. The dam was constructed of logs, gravel, and lumber; the part on the north bank of the river was just gravel. The north bank of the river, north and west of the mill, is raised above the water about 2 feet. The ice.break was constructed of logs, lumber, gravel, and stone. The logs were halved together and pointed; wide at the back end; not exactly to a point, but halved and filled in; the crib filled with gravel and stone. The spillway from the ice bre'ak to the south bank was made of logs, lumber, and gravel. I have had a little opportunity to see how the logs were put in. It looked to me as if they laid up and down the stream and crosswise of the stream, cribbed up and filled with gravel and banked up with gravel; with plank on top of thé cribs, slanting up back under the gravel. On the south side of the stream, the gravel extended probably 70 or 100 feet west, and on the north side of the stream, 24 or 25 feet. The log cribbing was covered with plank back of the spillway. The plank were slanting down towards the upper part of the .stream. The part of the dam extending west on the south bank of the river was constructed of
The witness testified that Exhibit B, though without measurements, correctly represents a cross section of the dam, as originally constructed:
Cross Section of Dam Through Spillway as it Was in 1875.
On cross-examination, the witness swore that the dam had not gone out since he came to Northwood, in 1871; that the dam had lowered some, but had never been washed out.
“When I repaired the dam, the propping washed out in a certain place: that is, let it drop down 3 or 1 feet at the upper end. The whole middle part of the dam did not go out;” that Nye and Willing had repaired the dam by putting “a kind of a plank apron over the east side. * * . * The apron they put on was of plank. It was made of planking laid flatwise around in cribs, and the back end of the apron was filled with plank on top of each other. The front was of flat plank, set back 2 inches every time they were laid on. * * * Nothing was done to the heavy timbering of the dam at that time. The apron was built of itself under
Exhibit D, which was identified as a fair representation of a cross-section, when compared with Exhibit B, illustrates precisely what was placed in front of and against the dam to strengthen it.
Cross Section of Dam through Spillway as it was in 1906, Showing Outlines of Cement Apron Built by Plaintiff.
The dam, as it had previously existed, remained as originally constructed. A-log, which had decayed, may have been replaced by another, or gravel had replaced what had washed out; but such changes were made by way of repair. The successive aprons with the gravel underlying cannot be said to constitute a new dam. They were not such, and, at the most, might be regarded as additions to the old one. The same must be said of the concrete apron, replacing those made of plank. The plaintiff replaced the plank with concrete in 1907. ■ A concrete abutment or ice break was constructed on the north side in 1910, and, at some time, a stone wall along the south side of the river. Between these two, the dam, 120 feet long, remains, with the cement apron, as appears from Exhibit No. 1.
Undoubtedly, the construction of the plank aprons, and, later, that of the concrete, greatly strengthened the original dam; but none of these destroyed its identity. They were, as said, in the nature of additions thereto, or betterments, but not, in any sense, repairs; and, as the dam existing at the time the deed was executed, was not destroyed, the right to profit a prendre was not terminated. Nor was there any substantial evidence that the dam, with its additions, was higher than the dam when originally constructed. We reach the conclusion that the original dam continues intact, notwithstanding the additions or betterments, and that the right to take gravel from the gravel pit was not terminated.
“No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration, without notice, 'unless recorded in the office of the recorder of the county in which the same lies, as hereinafter provided.” Section 2925 of the Code.