Opinion
July 7, 1915.
Elon R. Brown [ Henry H. Babcock, attorney for the Case Lumber and Roofing Company], for the appellants New York Air Brake Company and Case Lumber and Roofing Company.
Arthur C. Rounds, for the appellant Watertown Light and Power Company.
W.W. Kelley, for the appellant James B. Wise.
George S. Hooker, for the appellant George A. Lance.
Edward N. Smith [ Pardon C. Williams and Louis L. Waters of counsel], for the plaintiff, respondent.
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 twenty 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 so to use it until the cotton mill burned in 1833, without objection, so far as appears, from the owners on the south channel. This certainly interrupted any claim on the part of the south channel owners to divert all the water into that channel. Certainly during this period the south channel owners were not maintaining this dam adversely to Beebee. It was then Beebee's dam and he used it as much as did the south channel owners. At the time the cotton mill burned in 1833 we think the legal relations between the south channel owners and Beebee in respect of this dam were practically the same as if they and Beebee had originally joined in its construction. If this be so then Beebee and his successors in title to the east end of the island and to the north shore of the north channel did not thereafter lose any of their riparian rights along the north channel by failure to make use of them for power purposes, unless the south channel owners did something to initiate anew a claim of right to divert the north channel waters into 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 1840 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 twenty 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 twenty years. ( Conabeer v. N.Y.C. H.R.R.R. Co., 156 N.Y. 474; 3 Farnham on Waters, 2294; Townsend v. McDonald, 12 N.Y. 381; Gould on Waters [3d ed.], § 204; Burnham v. Kempton, 44 N.H. 78; Brown v. Bowen, 30 N.Y. 519; Washb. Ease. 152.)
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. 23.)
But clearly after Beebee became the owner of the land on which the dam rested and the shore against which it abutted, and had for four 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 land on the north shore, against which the dam abutted, he had the right to take it down, notwithstanding the reservation contained in the deed to him of the east end of the island, to permit Cowan and his successors to maintain and repair the dam. This reservation did not affect him as owner on the north shore. So it seems to us that the elements for establishing a prescriptive right in favor of the south channel owners after 1833 are lacking in this case.
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 as a disseizin. There is no ouster unless there are acts of exclusion of other owners unequivocal in character. ( Warren v. Westbrook Mfg. Co., 86 Me. 32; 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:
First. 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.
Second. 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.
Third. 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 conveyed of any hydraulic works is still operative, and that plaintiff vested with the right to enforce it and to prevent the defendant the New York Air Brake Company from making any hydraulic development on the end of the island. At the time this deed was made Cowan had parted with all his lands on the south shore of the south channel except the woolen mill lot. He had, however, some remaining lands on the south shore of the island. The deed to Mosher was limited to the upland, and did not convey any of the land under water surrounding the east end of the island in either channel.
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 the carding or manufacture 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 the 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 Beebee 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.
Mosher conveyed the east part of the island to Colwell and Colwell on October 31, 1825, by deed containing the same covenant against the erection of hydraulic works and a further covenant, as follows: "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 grist mill now in possession and occupation of Joseph R. Henderson, to go onto the rocks at the water's edge and to build on the said rocks a dam, and the privilege of passing and re-passing to 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 grist mill then owned by Joseph R. Henderson. Cowan had disposed of this grist mill, 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 grist mill as the property benefited. We cannot construe the covenant in the Cowan deed to Mosher as intended for the benefit of the grist mill 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 following: "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 re-passing on 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.
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 privileges of Colwell and Colwell upon the Mosher land? What was the object of the clause prohibiting the erection of works for the grinding of grain and manufacture of animal wool if Cowan had previously contracted in his deed with Mosher for a transfer of all the water rights appurtenant to the north shore of the island to the south channel? By what right does Cowan undertake to provide that all the river surrounding the Mosher land in both channels to the center line may be used for any hydraulic works except to grind grain and manufacture wool if he had already appropriated the waters of these two channels to the benefit of the south channel powers? Cowan knew at the time he made this deed that Colwell and Colwell had already purchased the Mosher land, for it is so recited in the deed itself. On the same day this deed was made, January 16, 1827, Colwell and Colwell conveyed both the Mosher land and the land in the bed of the river covered by this deed to Levi Beebee, who proceeded, after buying some other land of Cowan in the south channel and purchasing the north shore of the river and all its water rights, including the land on which Cowan's dam rested or that part of it north of the center of the north channel, to build a cotton mill on the north shore of the island, and to cut a channel in the rocks to take water from the pond made by these two dams at a point in the south channel. He made a large investment in this cotton mill and operated it with water power for about four years, until the mill burned, without, so far as appears, objection by Cowan or any of the mill owners on the south channel. If the covenant in the Mosher deed against the erection of hydraulic works on the east end of the island was then in force, the cotton mill operation was a plain, bald violation of that covenant, and according to plaintiff's theory of the case, Beebee's investment could have been practically destroyed by any of the mill owners on the south shore proceeding to enforce against Beebee that covenant. We think it cannot be assumed that Beebee made his large investment without believing that he had a legal right to erect and operate hydraulic works upon the Mosher land. If he did not have that right and the land was, in fact, restricted against hydraulic works for the benefit of the south channel power owners, and the latter, through Cowan or otherwise, as is suggested by plaintiff's counsel, consented to waive the restriction so as to secure the erection of the Beebee cotton mill, we think the legal effect of such waiver or consent is to waive and destroy the restriction altogether.
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.
Second. As to the intention of Cowan by the covenants in the Mosher deed to provide for diverting north channel waters into the south channel: It is the theory of the plaintiff that the covenant exacted by Cowan from Mosher against the erection of hydraulic works and the subsequent building of the dam by Cowan across the north channel show an intention on Cowan's part to divert the waters of the north channel into the south channel for the benefit of the powers, or possible powers, on that channel, and this is the view adopted by the learned referee.
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.
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 the said rocks a dam and the privileges of passing and re-passing to and from, in order to build, re-build or repair said dam," does not, in terms, refer to a dam to be put across the north channel. It is true that Cowan did, within two years, build the dam across the north channel, but it cannot be said with certainty that the dam which he subsequently built was the one which he had in contemplation at the time he conveyed to Mosher. The language used seems to indicate that he had not built the dam up to that time. Fully half the shore front of the Mosher land was on the south channel. Undoubtedly Cowan could have located the dam at any point he chose in the south channel or in the north channel, and his right to maintain and repair it under this deed would have been the same. But how can it be said with certainty that this clause with reference to the construction of the dam necessarily indicates that Cowan then intended to build such a dam as would divert the north channel waters from their natural course, or that Mosher should have so understood his covenant? Mosher would more naturally expect that Cowan was to build his proposed dam on land which Cowan owned rather than across the north half of the north channel on lands which he did not own.
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 pepper corn 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 grist mill 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 pepper corn 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.
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 enforce the covenant, and how would he have succeeded in showing that the covenant was made for the benefit of his mill?
Cowan, however, owned property on the south shore of the island which had water rights which it is more probable Cowan intended to benefit by the covenant in the Mosher deed, if it can be held that that covenant had reference to bringing north channel waters into the south channel. But that property is not now owned by plaintiff and cannot be the basis of any right in the plaintiff to maintain this action. Hence, we need not stop to point out difficulties which the present owners of that property would encounter in seeking to enforce the covenant. The fact is that there is nothing in their chain of title which indicates that Cowan in conveying those lands included any easement or privilege in the north shore dam or to the waters naturally appurtenant to that channel.
If we are correct in the conclusions above stated, it seems to follow that the dam across the north channel and the restrictions of the Mosher land against hydraulic works have not operated to confer upon the south channel owners a right to divert any of the waters naturally appurtenant to the shores on the north channel.
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 plaintiff, Knowlton Brothers, 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 Brothers, the plaintiff, 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 Brothers to the Watertown 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 are also more consistent with plaintiff's understanding of its rights as stated in its original complaint, wherein no claim was asserted to a prescriptive right to divert to the south channel the waters of the north half of the north channel.
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 are disapproved: Findings of fact Nos. 15, 27, 28, 29, 30, 31, 33, 54, 55, 57, 58 and 80.
All concurred.
Judgment reversed and new trial granted before another referee, with costs to each of the appellants appearing upon this appeal by separate attorneys to abide the final award of costs.