187 Iowa 40 | Iowa | 1919
The original site of the city of Cedar Rapids was platted in the year 1843. It included what was then known as “Commercial Street,” but, in more recent plats, is designated “First Street.” This street was laid substantially parallel with the east bank of the Cedar River, a stream which had been meandered in the then recent government survey of the land. The narrow strip between the street and stream was platted into lots 60 feet wide, fronting on the street. The depth of these lots is not indicated on the plat, but it is quite evident that they were-laid out to extend from the street line to the highwater line .of the river. Among the lots thus platted was one designated “Lot 2 in Block 3,” the title to which and the rights alleged to be appurtenant thereto being the subjects of controversy in this action.
Early in the history of the settlement of‘the state at this point, efforts were made to improve and utilize the water power afforded by the Cedar River; and, even before a right so to do was obtained from the Federal or state authorities, a dam had been constructed, a short distance up stream from the site of this lot. In 1848, the legislature, by statute, authorized a resurvey of the land between Commercial Street and the liver, and its division into lots of a “convenient size, to be used or disposed of for hydraulic or other purposes.” 1 In 1853, the legislature further authorized Nicholas B. Brown and three others to construct and maintain a dam across the river at this point; and, within a' few years thereafter, such dam was, in fact, built upon the site of the earlier structure. Beginning at or near the east end of this dam, a distance of something more than 200 feet above Lot 2, Block 3, a race was provided, by erecting a
The manner and course of the transmission of title to the shore lots mentioned, and to the dam and the water power thereby furnished, is by no means clearly revealed in the printed record before us; but it seems to be conceded that, in the early history of the development of this property, Brown became tÉe owner of Lot 2, Block 3, and that he also became owner of a large fractional interest in the dam and power. Lot 2 was the second or third in order of position' below the head of the race, and Lot 1, immediately above it, was owned by one Cooper. Each erected and used a mill in connection with his lot, and used the power afforded by the dam and race. Whether Brown’s mill was situated on Lot 2 or immediately in the rear of said lot, with its foundations resting in the bed of the race, is a matter of controversy; but the record fairly tends to show that, as originally constructed, it stood with its east front eight feet west of the east bank of the race, and was connected with the east shore by a bridge or platform, and that the mill structure rested upon piling and stone piers over the bed of the stream. The history of the property and of its ownership and control is complicated, and somewhat obscured by litigation between the proprietors themselves and between the proprietors and their creditors; but defendants admit that, prior to the death of Brown, many years ago, he and his associates acquired title to the dam and water power, and that, upon his decease, his widow, Susan Brown, became the owner of Lot 2, Block 3. They also admit that Susan Brown, Mary L. Brown, and N. E. Brown became the owners of 59/64 of the dam and water power furnished thereby, and allege that, on November 17, 1900, said owners united in convey
Prior to the beginning of this action, the city undertook to utilize the dam, race, and water for the construction of an electic light and power plant. In so doing, it sought to reconstruct the raceway in a manner which required an excavation of the eastern bank, a few feet beyond the line to which it had theretofore been maintained. The right so to do was denied by the plaintiff, who is the owner of Lot 2, and who claims also to have acquired a right to the use of the water power for the operation of the so-called “Brown Mill,” title to which he also asserts.
It is out of these conflicting claims that this litigation has arisen. The pleadings, as filed, present numerous issues and numerous demands for equitable relief, but the case argued and submitted for the plaintiff on this appeal turns very largely upon the true depth of Lot 2, Block 3, and upon the further question whether the ownership of said property carries with it any appurtenant right in the dam, or to the use of power thereby created. It is the contention of the plaintiff that Lot 2 is 120 feet in depth, measured from the street westward, and that the right to share in the use of the power is appurtenant thereto. According to the defendants’ claim, the depth of plaintiff’s lot is measured by the distance from the street to the east border of the race, which is 35 feet on the north line and 43 or 44 feet on the south line. It is also defendants’ position that the ownership of the shore lots, including Lot 2, has been fully, severed from the ownership of the water power, and that the right to use such power is not an appurtenance of said lot.
“An undivided 59/64 of the property known as the Cedar Rapids water power, together with the undivided 59/64 of the dam, raceways, bulkheads, water rights, rights
The property thus designated, it will be observed, constitutes all the property, right, title, and interest which the Browns severally or in common are shown to have held, owned, or claimed at any time in the dam or water power, or in the rights and privileges connected therewith. It follows quite inevitably that the making and delivery of such conveyance left in Susan Brown the ownership of Lot 2, wholly divested of any appurtenant right in the dam or power, and that Smith took the title to the dam and the power, unburdened and undiminished by any right appurtenant to the lot retained by his said grantor. All the title, rights, and privileges thus acquired by Smith have passed by his subsequent deed to the city of Cedar Rapids; and neither Susan Brown nor plaintiff, as her grantee, can be heard to deny the legal effect of her conveyance. Appellant’s title, if any he has, to the alleged appurtenance must be traced to some other source.
After taking his deed, plaintiff appears to have used the mill, personally or by tenant, to a greater or less ex
“I knew it when I bought the property that the water power was sold. I knew it at the time I bought the property. I knew that is what they said, that they had sold the dam to Walter B. Smith. I think that was sold just before I bought the property * * * I did not know that my deed from Susan Brown didn’t say anything about the ■water power. I did not read the deed at the time I got it. Didn’t anybody read it to me,, as I know of. I acted for myself in getting the property. I didn’t have to contract to buy any water power.”
It is true he says he claimed to have acquired the mill, and to be its owner, but he nowhere says or shows that he ever made any claim to have purchased any right to the water power as an appurtenance to the lot. On the contrary, as we have seen, he distinctly says he bought the lot, knowing that the dam and water power had already been parted with by his grantors to a third party. Indeed, it is quite apparent that his use of the water power was permissive only. It does not appear that he ever demanded or obtained the use of such power as his right. On the contrary, after the city, claiming under its deed from Smith, took possession of the dam, plaintiff applied to the city commissioner in charge thereof for a supply of water, not as a right, but rather as a favor. Says the commissioner, as a witness:
“Mr. Wenig would sometimes ask-me to open the gates and let him have some water-. He never made, a demand of me; he asked me to let him have some water if I could. I don’t think he ever claimed to own any water or have a legal right to use the water for the operation of his mill. My recollection is clear on that subject. * * * The
He says, and other witnesses swear, that he “claimed to own the mill;” but this might well be true, without denying the efficiency of the deed from the Browns to Smith, conveying the dam and power to the latter. That deed, as we have seen, divested the Browns of any appurtenant rights in the dam or power, and their subsequent deed of the lot to plaintiff vested him with no other or greater right than was left in them after the conveyance to Smith. Plaintiff’s conduct, as shown in evidence, is entirely consistent with a recognition of the superior right of Smith and his grantees. His seeking and obtaining permission of the city to use the water, if not a distinct recognition of his lack of proprietary right, tends very strongly to sustain the conclusion that his claim of right was limited to the ownership of the property expressly described in his deed. He does not claim to have believed or supposed that he was getting any property or right other than was described in his deed. .To that he is entitled, and no more.
The decree of the district court is, therefore, affirmed, with costs. — Affirmed.