Lawrence v. Whitney

The controversy between these parties respects their relative rights to the use of the water of the Genesee river as power to drive their mills. A dam has been com I structed across the river above the falls, and the waters retained by it .pass through guard-gates on each side, and reach the mills through a race on the east bank of the river, and through what is called Brown’s race on the west side; and the plaintiffs, who are a part of the proprietors drawing their water | power from the latter race, claim to be entitled to the use of ’seventy-nine eighty-fifths of the water of the river, leaving to the owners on the east side only six eighty-fifths of the power stored by the dam. The fundamental proposition upon which this claim rests is that the predecessors of the plaintiffs,

The common source of title seems to have been Moses " ' Atwater, whose ownership extended along the east shore and covered the river to its center. His right to the water followed from his title to the bed of the stream. It was not an appurtenance to the land of the shore, but, in a legal sense, part of the land itself, and was embraced within the actual metes and bounds of his ownership. Of course, this right of his was. qualified by .the character of the property, so far as it consisted of a flowing stream. He was bound to deliver it at its propel level where it left his land to the proprietors below, and to use it without injury to those above. But, subject to these limitations, he had not an appurtenance to the lots on the banks, but the river itself, considered as power, by force of the ownership of its bed. We may now follow his conveyances on the east side. He began by a survey of the land and caused a map to be made, known as Hudson’s map, which was filed in the clerk’s office, and with reference to which his deeds were made. In the year 1819, and before thé survey, Atwater '■< had conveyed to Cleveland and Andrews what became by the map lot 16, which was separated from the brink of the falls only by a single lot, known as lot 15, which was afterward washed away and has substantially disappeared. This conveyance was by metes and bounds, and included no part of the

. The balance of the east-side lots above the falls and below the dam, were sold by Atwater to Bissell under a description which made the river their western boundary, and so carried that line to the center of the stream. Bissell conveyed an undivided half to Hills in' 1829, and by a deed of his heirs ■the other half went to Ely in 1832. The next year an agreeTment was made between Ely on the one hand, and the then ■proprietors of the lots on Brown’s race, whom we may designate, .for convenience, as the first group of west-side owners, includ

I think it is not difficult to see what was the real scope and meaning of this contract as between the several members of the purchasing group. It was an agreement among pur I chasers, dictating by personal covenants the manner of using ! the property purchased. No one owner conveyed or granted any land, or any easement in land, to his associates, or any of /them. The property bought and held in common was bought for the water-power upon it, and that power was to be used on the west side, and severed in due proportion, so' that each could use his own in the event that the general purpose should be realized. Since each could not use his own upon the west side, unless all agreed to that use, therefore, all did agree, and what each man got by the agreement was the covenant of the associates to use their shares on the west side so that he could use his at the same point. There was thus no grant or transjfer of anything from one to another, and, as a necessary consequence, the covenants for use did not run with the land, and remained personal. An illustration of this truth is furnished by the case of Hurd v. Curtis ( 19 Pick. 459 , 464), where the respective parties, owning independent estates, entered into covenants with each other as to the kind of wheels they should -respectively use in their several mills. A grantee of one party sued for breach of the covenant and was defeated. The court held that the estates were several, and “there was no grant of any interest in the real estate of either party to which the covenant could be annexed.” ■■ In the present case the water-right, bought in common, was carefully severed, considered as power; to each owner was -assigned his due proportion, and each agreed to use what was his own for his own benefit, but at a particular place. No one party conveyed to any other party the slightest interest in Ms several and independent estate on Brown’s race,

Beyond that consideration I think no such result was contemplated. The agreement indicates in two emergencies a purpose to sell the lots as they existed, and without change, and recognizes the impossibility at that date of effecting the desired result, and in that event distinctly provides for mills on the east side to be' driven by that half of the river, and so for' a use of the water in its normal and natural way. The power of the east half is denominated, with reference to its use on the west side, “ surplus "water,” by which phrase was evidently meant water not belonging or appertaining to the west side, but a “ surplus ” over and above and beyond that. It is further to be observed that the right of the owners on Brown’s race, as they existed at the date of the contract, by express stipulation, were not to be altered or changed, defeated or impaired by the operation of the contract itself. This seems to me a decisive indication of a purpose to obtain and control a new and separate water privilege, and not to enlarge a.nd

But this contract does not disclose • the full strength of plaintiffs’ case. Two years after its execution the remaining undivided half of the Bissell purchase, which had passed from him to Hills, vested in Everard Peck, who sold his interest to Silas O. Smith and his associates. Whether these were the same identical persons who constituted the first group of Brown’s race proprietors I do not know, and it may not be necessary to ascertain, but they were certainly west-side owners, and may be identified as the second group. So far as they were identical, the Bissell lots and rights had passed to them entirely, one-half from Ely and one-half from Peck, for the attempted trust failing the title went to the beneficiaries. The contract with Peck is not in evidence, but proved by recitals. The purchase from him is found as a fact. The deed given by his heirs to the defendant Whitney passed nothing but the naked legal title. The beneficial ownership went to the second group of Brown’s race proprietors. Assuming the identity of the two groups, the whole Bissell right was vested in them, and the purchase from Peck advanced them one stage further towards the possibility of diverting the east-side water into Brown’s race, but without changing their relations to each other or depriving the east-side lots of the water which formed a part of them as against future grantees to the center of the river, who had assumed none of the covenants of the contract of 1833.

But there still remained the hostile rights belonging to lots B, 16 and 11. In 1855 Cornelius Parsons had become the owner of lot 11, and in June of that year conveyed it and all its water rights to a third group of Brown’s race proprietors. These latter were different persons from those in the first

The appellants claim for it a much wider office and effect. They treat it as an admission by Whitney that the power of the whole river was represented by eighty-five parts or a force sufficient to drive eighty-five runs of stone, and that seventy-nine of these parts belonged to the then proprietors of Brown’s race. Such are not its terms. It stipulates that the water and water-rights of the river “ appertaining to or connected with the lots and premises herein above mentioned” shall be so represented. Those lots were the Browns’ race lots on the west side and lots 17, B and 16 on the east side. It is only by assuming what we cannot admit, that the water-power of the other east side-lots had been stripped from them and attached to the west-side lots, that the division and apportionment could be made to extend to all lots on both sides of the river. On the contrary, the contract explicitly admits that no such transfer had been or was to be accomplished as to lot 17 on the east side, for while providing for a shaft to be placed by Ward over or through that lot it specifies that he shall not interfere with t‘ the water or water-rights to which the same is entitled.” This contract with Ward was after the deed from Parsons and shows that in the contemplation of all parties lot 17 had not been denuded of its water-rights, but retained them and rendered necessary a special covenant for their protection. It is observable, also, that there is nowhere in this agreement any trace of a covenant or the admission of a covenant for the

Pausing at this point, let us see what had been accomplished. The dam across the river has received everybody’s assent and become a fixed fact. As a consequence, all the water-power of each and every lot on both sides running to the thread of the stream was stored in the dam and distributed therefrom, each lot having its due share as part and parcel of the land itself. A division of that power was possible. The whole power of both sides pertaining to specific lots was agreed to be not less than eighty-five parts, each representing one run of stone. One-half, or forty-two and a half parts at least, belonged to each side as parcel of the water lots running to the center of the river. The Brown’s race owners, in different and consecutive groups, bought all of the east-side lots and the power belonging to them, except Ward’s B and 16, which were assigned six eighty-fifths. The new owners

The G-eneral Term reached this conclusion. They said, “ the fact that some of the owners, more or less, of the property and water privileges on Brown’s race became and were the owners of land on the opposite side of the river, did not have the effect to make the right to the use of the water east of the thread of the stream appurtenant to their land on the west side, nor would such be the effect of a conveyance of the land on the east side by an owner of it on both sides excepting and reserving from the grant the right to the use of the water of the river.” The learned counsel for the appellant says, as a comment, “ all that I concede; but it is not this case.” He then argues that the result is changed when there is superadded to the ownership on both sides the agreements for use on the west side and the force of the partition decree, to which I shall hereafter refer. My answer to that criticism has already been made, and, perhaps, may be repeated in a somewhat different form. The water-power of the east-side lots was a part of the land; such part of the land could not be severed from the other and remaining part except' by deed; no such deed working a severance was made; what was done was merely a personal agreement of the owners to use a part of their property capable of physical transfer on the west side; but it continued to be an integral part of the east-side water-lots. Each west-side proprietor owned also his proportion of east-side power by force of his title to the east-side lots, and had covenanted to use his east-side power on the west side; but if he sold his east-side land to one not bound by the covenant the grantee was free to restore the use of the power to the land purchased and to which it belonged.

It is claimed that he so purchased the eleven shares of Silas O. Smith in the Ely and Peck transfers to the first and second group of Brown’s race proprietors. I suppose those shares were not included .in the findings above referred to. Smith is not named among those whose rights, under the Ely purchase, Whitney acquired, and such shares may not have

It is said, however, that he is estopped by a later deed from Smith’s executors. That was made in 1874, and quit-claims Smith’s interest in certain property on Water and St. Paul streets derived from Buell in 1851, excepting and reserving Smith’s right at his death “to the use of water originally belonging to land on the east side of the river, but transferred and made appurtenant to land on the west side of said river, without prejudice to any rights which the saicl Whitney now has.” I do not see what meaning belongs to the last clause unless it be that the grantee by accepting the deed with the exception in it as described is not , thereby tó be prejudiced as to any of his existing rights. The grantors chose their own terms and description of what they reserved. The grantee did not admit the grantor’s title or right to the thing excepted, or the truth or accuracy of its description, but was left with his existing rights unprejudiced and unaffected. I do not think the acceptance of the deed amounts even to an admission. The other grounds of estoppel alleged relate to lot 17 and are based upon the deed of Parsons and the judgment in Pool v. Connolly, which was founded upon that deed, and the acts of the parties. If that should be conceded, it would affect only the water-right appertaining to lot 17 and not alter the necessity of affirming the judgment appealed from. It may be, as the respondent claims, that a partition was sought of the land merely without the water-right of lot 17, and that there was no jurisdiction in the court to adjudge what had become of those water-rights, by declaring that they had been diverted to the west-side lots, but it

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.