Knowlton Bros. v. New York Air Brake Co.

[1-4] Assuming that when, as early as 1824, Cowan extended his dam across the north half of the north channel and abutted it against the north bank on lands which he did not own, it was his intention to divert the waters of the north channel into the south channel for the benefit of water lots or powers on that channel, as the referee has found, still no prescriptive right to so divert the water could •arise until he had continued to maintain this dam and divert the water for 20 years. We must assume on the evidence and findings that this •dam was not extended to the north bank earlier than the beginning of the year 1824. In January, 1828, Beebee acquired title to the north .half of the north channel on which this dam stood. If the dam was so ■affixed as to become part of the realty, he then owned the dam itself. He began at once to utilize this dam to furnish power to his cotton mill, and continued to so use it until the cotton mill burned in 1833, without objection, so far as appears, from the owners on the south channel.

The evidence does not disclose any act on the part of the south channel owners of that character. They did, it is claimed, use the water, but not to the injury of the north channel owners, who, until 1840, had no use for the water, and therefore no occasion to object to any use which others might make of it. In 18401 the dam was pierced, and a flume and wing dam constructed to supply the checkered mill on the north shore of the north channel. No attempt was made to prevent this by any of the south channel owners, nor did they object or question the right so to do. The dam at that time had not been in existence-for 20 years. If the adverse user was interrupted by Beebee’s purchase of the land on which the dam rested and abutted, and his use of the dam until 1833, and no new adverse user as against the north channel owners was initiated after that time, then we think the mere continued standing of the dam thereafter, even if its effect was to divert the water into the south channel, was not adverse, or sufficient to establish an adverse claim on the part of the south channel owners, although continued for more than 20 years. Conabeer v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 474 , 51 N. E. 402 ; 3 Farnham on Waters, § 2294; Townsend v. McDonald, 12 N. Y. 382 , 64 Am. Dec. 508 ; Gould on Waters (3d Ed.) §. 204; Burnham v. Kempton, 44 N. H. 78 ; Brown v. Bowen, 30 N. Y. 519 , 86 Am. Dec. 406 ; Washburn on Easements, p. 152.

[5] The great and leading fact upon which the finding of an adverse user against the north channel owners rests is the construction by Cowan of this dam across the north channel upon and against lands which he did not own. This was a trespass, and afforded a cause of action in favor of the owner of the land against which the dam abutted. Bliss v. Rice, 17 Pick. (Mass.) 23 .

[6-8] But clearly, after Beebée became the owner of the land on which the dam rested and the shore against which it abutted, and had for 4 years himself made use of the water stored up by this dam, he-could not then have maintained an action against any south channel owner. He had become the owner of the dam and had applied it to his own use. If he saw fit to allow the dam to remain, and not to make use of the power so developed, but allowed the water to run into the south channel, certainly that afforded him no cause of action. If he wished to prevent it, he had simply to take down his dam, and as owner of the:

[9] Beebee, at about the time he acquired title to the land on which the dam rested, also purchased other land which Cowan owned on’ the south shore of the island, which had water rights, and lands on the lower end of the island on the south channel. Thus he had a motive and direct personal interest to maintain the dam across the north channel, in so far as it benefited these water powers of his on the south channel. If Beebee was not the sole owner of this dam, he had such an interest in it as would make him a tenant in common with the other south channel owners, and until these other owners did something equivalent to an ouster of Beebee or his successors there was nothing adverse to them in the use which the south channel owners made of the dam. The entry and possession of one tenant in common is deemed the entry and possession of all, and not a disseisin. There is no ouster, unless there are acts of exclusion of other owners unequivocal in character. Warren v. Westbrook Mfg. Co., 86 Me. 32 , 29 Atl. 927 , 26 L. R. A. 284 ; Northrop v. Wright, 24 Wend. 221 ; Culver v. Rhodes, 87 N. Y. 348 .

Assuming, however, that the covenants and restrictions in the deed to Mosher were intended to provide for the construction of a dam across the north channel to divert the waters of that channel into the south channel, we are of opinion that plaintiff is not in a position to invoke the equitable jurisdiction of this court to restrain the defendant the New York Air Brake Company from the erection of hydraulic works upon the Mosher lands for the following reasons:

. (1) Because the restriction against hydraulic works was waived and abrogated by the subsequent vesting in Colwell and Colwell, after they purchased the Mosher lands, of the title to the surrounding river bed, and the acquiescence and apparent consent of all parties then interested in the Beebee cotton mill development.

(2) It does not appear that the purpose of the north channel dam was to divert north channel waters rather than to create a better head at the south channel dam,'or to prevent the south channel dam from diverting its waters into the north channel.

(3) That the restriction against hydraulic works, if intended to provide for diverting north channel waters into the south channel, was not intended for the benefit of lands now owned by the plaintiff, and did not create an easement in favor of those lands, but, as is more probable, was for the benefit of Cowan’s remaining lands on the south shore of the island, in which plaintiff is not now interested.

We will take up these questions in the order stated above.

First. It is claimed by plaintiff, and has been found by the referee, that the. covenant in the deed from Cowan to Mosher of November 9, .1822, of the east end of the island, against the erection on the land con

On January 16, 1827, Cowan conveyed to Colwell and Colwell the lands under water in both channels surrounding the lands previously conveyed to Mosher. This deed states that it does not convey to the grantees the right to erect any works “for the grinding of any species of grain or any works for carding or manufacturing of any species of animal wool.” Colwell and Colwell had previously, and on October 31, 1825, acquired from Mosher all the upland on the east end of the island which he had acquired from Cowan, and this fact is recited in the deed from Cowan to Colwell and Colwell. So Cowan knew, when he conveyed to Colwell and Colwell the land under water, that they were also the owners of the adjoining land out of water. On the same day, January 16,1827, Colwell and Colwell conveyed to Beebee all this east end of the island, together with all the land in the bed of the river surrounding the same. In the deed from the Colwells to Bee-bee there is no covenant against the erection of hydraulic -works upon the land conveyed; but it did contain a clause that no right is conveyed to erect any works for the grinding of grain or carding or manufacture of any species of animal wool.

It is the contention of the defendant the New York Air Brake Company that the deed from Cowan to the Colwells of the land under water was intended to vest in the Colwells the water rights appurtenant to the head of the island in both channels. This contention is -based, in part, upon the fact that it contains a restriction against works for grinding grain or. manufacturing animal wool, thus, in effect, authorizing the use of the power for any other purpose; that it was made in preparation for vesting in Beebee the head of the island, to enable him to construct the cotton mill, and to use the power to operate that mill; and that Beebee proceeded to make that use of it, without, so far as appears, objection from any source. The evidence is ample to sustain a finding that Beebee at least did so understand the effect of Cowan’s deed to the Colwells, for otherwise his large investment was made without having any water power which he could rightfully use to drive his mill.

It is plaintiff’s contention that the covenant in the deed from Cowan to Mosher against the erection of hydraulic works runs with the land, and that plaintiff is the successor of the rights reserved by Cowan by virtue of that covenant, and may now enforce the covenant and prevent the development of any hydraulic works upon the Mosher lands for the benefit and protection of water privileges of plaintiff on the south shore of the south channel. This presents one of the most important questions involved in the case. .

“And that the said parties of the second part will at all times and on all occasions hereafter permit Jonathan, or his legal representatives or successors, or those who may own or occupy the property and gristmill now in possession and occupation of Joseph R. Henderson, to go onto the rocks at the water’s edge and to build on said rocks a dam, with the privilege of passing and repassing to and from and in order to build, rebuild, or repair said dam, without let, hindrance, or molestation.”

The Jonathan referred to was undoubtedly Jonathan Cowan. This clause would seem to indicate that the parties considered the right to maintain this dam as appurtenant to the gristmill then owned by Joseph R. Henderson. Cowan had disposed of this gristmill, one-fourth in November, 1817, and the remaining three-fourths in July, 1822. Of course, Mosher could not change the beneficiary of his covenant with Cowan, and the rights of the parties must, as we think, be determined by the Cowan deed to Mosher, and cannot be affected by this deed. In other words, if the covenant in Cowan’s deed to Mosher was made for the benefit of Cowan’s lands on the south side of the island, then Mosher had no right to substitute the gristmill as the property benefited. We cannot construe the covenant in the Cowan deed to Mosher as intended for the benefit of the gristmill because Mosher attempted to make it so three years later.

Colwell and Colwell, having acquired the Mosher lands in October, 1825, bought from Cowan on January 16, 1827, by warranty deed, all the bed of the river to the center of the channel on both sides of the island opposite the Mosher land, extending from the outer line of the Mosher land, where it bordered on the river, to the center of the channel in all directions. This deed, it is contended by the defendants, was made for- the purpose and with intent to restore to the Mosher lands the riparian and water rights which, according to plaintiff’s contention, the covenants in the Mosher deed had deprived it of. After describing the lands conveyed, this deed contains the f ollowing:

“But it is expressly understood and agreed, anything in this instrument to the contrary notwithstanding, that no right is hereby conveyed to the said parties of the second part, their heirs or assigns, to erect any works for the grinding of any species of grain or any works for the carding or manufacture of any species of animal wool. And it is hereby further understood that this conveyance is not to interfere with any grants heretofore made by the said Jonathan to any person- or persons, including the right of repairing and keeping at its present elevation the dam at the head of the island across the main stream, with the wing running from the main dam to the head of the island, and for that purpose of passing and repassing upon the above-described premises, doing as little damage as possible.”

Thus Cowan parted with the fee of the bed of the river surrounding the Mosher land.

[12] Was it the intent of the parties to restore to the Mosher land all its natural riparian rights, except as limited by the words of the deed against works for grinding grain or manufacturing animal wool ? What was the purpose of the grant, if it did not enlarge the rights and

[13] The more reasonable view to take of the matter seems to be that all the parties concerned construed the deed to Colwell and Colwell of the river bed surrounding the Mosher lands as having been made for the purpose of restoring to those lands the riparian rights withheld from them by the restriction against the erection of hydraulic works, and we think we should hold that such was the effect of that deed, at least as regards all hydraulic works, except for the grinding of grain and the manufacture of animal wool.

Having reached the conclusion that the Mosher covenant against hydraulic works has thus been eliminated, it is unnecessary to consider to what extent plaintiff would have succeeded to any rights under it, had it not ceased to exist.

It is to be observed that Cowan does not in this deed reserve in plain terms a right to divert north channel waters into the south channel. A covenant against the erection of hydraulic works is not, in and of itself, an agreement or consent to change the natural flow of the river. Cowan and his grantees had built on the south channel mills for almost every variety of manufacture in use at that time, and the object of the covenant against hydraulic works may have been to prevent the erection of mills to compete with those already established, entirely without reference to an intended use of the north channel waters by Cowan or his grantees. If the intent was to prevent competition with existing mills, then plaintiff has no standing to enforce the covenant, because the intended development by the New York Air Brake Company was not for a competing business to any which existed at the time the covenant was made or with the business which plaintiff now carries on.

[16] Notwithstanding the covenant by Mosher not to erect hydraulic works, we think he still had the right to insist that the water naturally appurtenant to the. north channel should flow in that channel, at least as regards that part of the north channel above the falls, for there his deed conveyed to low-water mark; that is, to the water of the river. He was thus a riparian owner, and could make any use of the water not against his covenant that he saw fit, or if he had no use to make of it, he still had the right to. have the water flow along his premises in the north channel in its natural state and at its natural height. Moreover, it is difficult, if not impossible, to say at this time whether Cowan, when he built the dam across the north channel, thereby intended to divert any of- the north channel waters into the south channel. It is impossible to say at this time whether the works installed on the south channel required for their successful operation any greater volume of water than at that time naturally flowed in the south channel. The watershed of the Black river at that time was far more densely wooded than now, and, with substantially the same rainfall, the average normal flow of the river was more uniform, with less water going off in freshets, than at the present time. But it was clearly to the advantage of these wheels to receive the water under greater head, and it is the fact that the dam across the north channel did afford such greater head, and it is quite as probable that was Cowan’s primary object in building this dam.

It is also to be noted that the covenant in the Cowan deed to Mosher, to the effect that he would permit Cowan “to go onto the rocks at the water’s edge, and to build on said rocks a dam, and to have the priv~

[17] Third. For whose benefit were the covenants made in the Mosher deed against the erection of hydraulic works and permitting Cowan to erect and maintain a dam? There were at this time some half dozen mills upon the south shore of the south channel, all but one of which Cowan had previously conveyed by perpetual lease, reserving rent in the form of one peppercorn per year, if demanded, and the right of re-entry for breach of covenant. The woolen mill Cowan still owned. He also owned lands on the south shore of the island. This woolen mill he conveyed to Coburn & Coburn in May, 1824, with the privilege of taking water only from the gristmill flume. This was the second or third right on this flume, so the quantity of water was limited by the size of the flume and by the extent of the prior rights. There is nothing in this conveyance to indicate that any right existed or was conveyed to divert north channel waters for the benefit of this mill property. But this woolen mill property was the only property which Cowan owned at the time of the Mosher deed in 1822, which the plaintiff now owns. Could Coburn & Coburn, after they received this deed of the woolen mill, have maintained an action against Mosher if he had destroyed Cowan’s dam, on the theory that Mosher’s covenant to permit Cowan to build the dam was made for the benefit of the woolen mill property ? How would they have proved such to have been the intent? Was the covenant for the benefit of other mills on the south shore of the south channel, which Cowan had previously conveyed by perpetual lease? It does not so appear from the covenant itself, nor was Cowan’s right of re-entry for failure to pay one peppercorn per year a right of such apparent value that we should expect Cowan to consider that he had any remaining interest whatever to be benefited.

[18] But, assuming that the owner of one of these mills had conceived his rights invaded by Mosher interfering with the dam across the. north channel, what standing would he have had in an action to

These conclusions have been reached, not without some hesitation, in view of the well-merited reputation of the learned referee as an authority upon questions of this character. We think, however, that the conclusions reached are more consistent with many of the leading facts in the history of these water powers than are those of the learned referee. For example, they are consistent with the Beebee cotton mill development and with the so-called Dorwin agreement and award, and the payment thereunder by the owners upon each side of the north channel, respectively, each of one-quarter of the expense of building the dams in both channels after they were destroyed by the flood in 1869, and their payment in the same proportion of the expense of the, repair and maintenance of these dams since that time. They are also consistent with the fact that the north channel owners, at the time of the Dorwin agreement, were permitted to fix the location of the dam on that channel according to their own best interest, and they are consistent with the form of the deeds from John C. Knowlton and George W. Knowlton to the plaintiffs, Knowlton Bros., of January 27, 1897, of certain lands on the north bank of the river to the center of the river, including “all the water powers, rights, and privileges apportioned and appurtenant to the same in accordance with the provisions of the so-called Dorwin award,” and the warranty deed from Knowlton Bros., the plaintiffs, to the Watertown Electric Light Company, of October 2, 1903, of lands on the north bank of the river, without reserving any of the riparian rights naturally appurtenant to the land conveyed, and the quitclaim deed from Knowlton Bros. to the Water-town Electric Light Company of the same date of land on the north shore of the river to the center of the river, including “all water rights and privileges of every 'name and nature appertaining thereto or connected therewith,” and also with the fact that in all the numerous conveyances of the mills and water rights on the south channel since 1824 down to the present time there is no express grant of an easement to divert north channel waters to the south channel. "They áre

These views, if. correct, will require a new trial of this case, and a disapproval of some of the findings of the learned referee. It seems unnecessary to consider other questions presented upon this appeal. As to some of them there may be other evidence upon another trial.

Our conclusion is that the judgment should be reversed, and a new trial ordered before another referee, with costs to each appellant appearing upon this appeal by separate attorneys, to abide the final award of-costs. The following findings of fact, or the parts thereof as stated, are disapproved: Findings of fact Nos. 15, 27, 28, 29, 30, 31, 33, 54, 55, 57, 58, and 80. All concur.