Pillsbury, J.
By the decision in Canal Trustees v. Haven, 5 Gilm. 548, we are relieved of the necessity of inquiring into the powers of the canal authorities to use the water of the DesPlaines river to supply the canal at the Joliet feeder. It was there held that they could not divert the water from the Havens’ mill to their damage without making compensation. Before the proceedings in that cause were concluded by the assessment of damages, the matter in dispute was compromised^ and the trustees, by purchase, obtained the right to divert the water of the river into the canal, as evidenced by the agreement in writing referred to, and recited in the statement of facts. Ho suggestion is made by counsel that this contract at its inception was not binding between the parties to it. Being valid between them, and continuing in its character relating to the future use of the water in the river, it is equally binding upon the successors of the trustees and the grantees of the Havens, and therefore the rights of the parties hereto to such water, do not depend so much upon the principles of law applicable to riparian proprietors, as upon the terms of the contract, in and by which their interests therein, by their privies in contract and estate, have been defined and limited.
In so far as the canal trustees acquired the right, by the purchase from the Havens, to divert the water of the Des-Plaines, they can use and appropriate it if necessary for the purposes of the grant, to the entire exclusion of the appellant, the grantee of the Havens, he having taken the mill and premises charged with such burden.
When relying upon their rights as riparian owners, the law declared that they were entitled to the use of the water as it was accustomed to flow in the bed of the river, but having seen proper, for a sufficient consideration, to convey to the trustees the right to divert the water from their mill by withdrawing it from the stream above their mill for canal purposes, their grantee, the present appellant, can only use the water of the river subject to such grant. The canal trustees, on the other hand, having no right to divert the water from the river channel to the injury of the Havens as riparian proprietors, by accepting the contract or grant, become bound by its terms, and to the extent of the grant, but no further, became entitled to the exclusive use of the water. The proper construction of the contract or grant in this view, in determining the rights of the parties to this cause, becomes of paramount importance, the appellees claiming to be lessees of the canal authorities, and of course having no greater rights than their lessors.
In construing contracts courts will examine their provisions in the light of the circumstances surrounding the parties and the subject-matter when they are made. The canal was completed in 1848, the construction being the same then as now, excepting the improvement made on the summit level by the city of Chicago, which was done at a later period. We think it fairly deducible from the admitted facts, if not stated in so many words, that the hydraulic basin referred to as being at Norton’s Mills, was a part of the original construction of the canal, and that before the deepening of the summit level, the surplus or waste water from that level was turned into the DesPlaines river in the same manner it has been since, although in much less quantities. At the same time all the water passing through the canal from Lock Ho. 1 entered the river above the mill-dam of the Havens, at the junction of the canal with the river. The volume of the water of the river was thus increased by all the water running in the canal, and the right of the trustees to divert from the stream at guard lock Ho. 1, the point where the canal leaves the river, the same amount of water they had added.to it, by the construction of the canal, was necessarily involved in the suit referred to in the 5th Gilm. and lltli Ills, had such claim been insisted upon, and must have been considered by the parties in the settlement of that controversy, when the contract was made adjusting their respective rights and interests in the water of the river. With these facts within the knowledge of the parties, and as we must conclude, taken into consideration by them in adjusting the matters in dispute, it would seem that the trustees treated the right to the exclusive use of the water of the river, increased by their own works, so far as it should be necessary to appropriate it for the purpose of navigation, as a sufficient consideration for the relinquishment upon then-part of any claim to use or divert any portion of the water in the stream from whatever source derived, not required by them for such purpose. From .the completion of the canal to the execution of the contract, the water was taken from the river at the feeder in Joliet, for the purpose of navigation only, as admitted by the statement of facts, and the agreement refers to such condition when it releases and discharges the trustees from all claim of damages that had or should be sustained by the Havens by reason of the use of the water of said river in supplying said canal in the manner the same was supplied at that time at said feeder. The words of the grant are equally specific and guarded.
They “ remise, release, and forever quit-claim, to the board of trustees and their successors in office, and to the State of Illinois, whenever said canal shall revert to said State, the right to use and appropriate the water of the said DesPlaines river at the feeders at Joliet below guard lock Ho 1, for supplying the said canal for the purposes of navigation in the same manner the water in said river, in connection with other feeders is now used for supplying said canal.”
There can be no doubt, from the language employed, that it was the real intent of the parties, by said grant to fix and determine as definitely as it was possible to do, the quantity of water that the canal trustees could rightfully use and appropriate to the exclusion of the Havens. It is carefully limited to such a quantity as would be necessary in connection with other feeders to supply the canal for navigation purposes.
The phrase “ in connection with other feeders,” was not intended by the parties, as counsel seem to suppose, as extending the uses for which the water of the river could be appropriated, but to more effectually limit the amount that could be diverted for the purposes of navigation. The true meaning appears to be, that the trustees could withdraw from the river the additional quantity of water required for navigation purposes, beyond that supplied to the canal by the other feeders, then in use.
It is contended, however, that owing to the improvement in the summit level, by which the waters of Lake Michigan are caused to flow through the canal into the DesPlaines river, by way of the discharge gates at Horton’s mills, double the quantity of water runs over the dam of appellant since the diversion now complained of, than did before such improvement was made, and the appellant instead of being damaged is in reality benefitted; and that the canal authorities can rightfully take from the waters of the river, the like quantity and make use of the same for any purpose they may desire.
Several cases have been cited by counsel as sustaining such position, and without controverting the doctrine therein announced, we are of the opinion that under the facts of this case the right contended for does not exist, even under the authorities cited.
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Pillsbury, J.
By the decision in Canal Trustees v. Haven, 5 Gilm. 548, we are relieved of the necessity of inquiring into the powers of the canal authorities to use the water of the DesPlaines river to supply the canal at the Joliet feeder. It was there held that they could not divert the water from the Havens’ mill to their damage without making compensation. Before the proceedings in that cause were concluded by the assessment of damages, the matter in dispute was compromised^ and the trustees, by purchase, obtained the right to divert the water of the river into the canal, as evidenced by the agreement in writing referred to, and recited in the statement of facts. Ho suggestion is made by counsel that this contract at its inception was not binding between the parties to it. Being valid between them, and continuing in its character relating to the future use of the water in the river, it is equally binding upon the successors of the trustees and the grantees of the Havens, and therefore the rights of the parties hereto to such water, do not depend so much upon the principles of law applicable to riparian proprietors, as upon the terms of the contract, in and by which their interests therein, by their privies in contract and estate, have been defined and limited.
In so far as the canal trustees acquired the right, by the purchase from the Havens, to divert the water of the Des-Plaines, they can use and appropriate it if necessary for the purposes of the grant, to the entire exclusion of the appellant, the grantee of the Havens, he having taken the mill and premises charged with such burden.
When relying upon their rights as riparian owners, the law declared that they were entitled to the use of the water as it was accustomed to flow in the bed of the river, but having seen proper, for a sufficient consideration, to convey to the trustees the right to divert the water from their mill by withdrawing it from the stream above their mill for canal purposes, their grantee, the present appellant, can only use the water of the river subject to such grant. The canal trustees, on the other hand, having no right to divert the water from the river channel to the injury of the Havens as riparian proprietors, by accepting the contract or grant, become bound by its terms, and to the extent of the grant, but no further, became entitled to the exclusive use of the water. The proper construction of the contract or grant in this view, in determining the rights of the parties to this cause, becomes of paramount importance, the appellees claiming to be lessees of the canal authorities, and of course having no greater rights than their lessors.
In construing contracts courts will examine their provisions in the light of the circumstances surrounding the parties and the subject-matter when they are made. The canal was completed in 1848, the construction being the same then as now, excepting the improvement made on the summit level by the city of Chicago, which was done at a later period. We think it fairly deducible from the admitted facts, if not stated in so many words, that the hydraulic basin referred to as being at Norton’s Mills, was a part of the original construction of the canal, and that before the deepening of the summit level, the surplus or waste water from that level was turned into the DesPlaines river in the same manner it has been since, although in much less quantities. At the same time all the water passing through the canal from Lock Ho. 1 entered the river above the mill-dam of the Havens, at the junction of the canal with the river. The volume of the water of the river was thus increased by all the water running in the canal, and the right of the trustees to divert from the stream at guard lock Ho. 1, the point where the canal leaves the river, the same amount of water they had added.to it, by the construction of the canal, was necessarily involved in the suit referred to in the 5th Gilm. and lltli Ills, had such claim been insisted upon, and must have been considered by the parties in the settlement of that controversy, when the contract was made adjusting their respective rights and interests in the water of the river. With these facts within the knowledge of the parties, and as we must conclude, taken into consideration by them in adjusting the matters in dispute, it would seem that the trustees treated the right to the exclusive use of the water of the river, increased by their own works, so far as it should be necessary to appropriate it for the purpose of navigation, as a sufficient consideration for the relinquishment upon then-part of any claim to use or divert any portion of the water in the stream from whatever source derived, not required by them for such purpose. From .the completion of the canal to the execution of the contract, the water was taken from the river at the feeder in Joliet, for the purpose of navigation only, as admitted by the statement of facts, and the agreement refers to such condition when it releases and discharges the trustees from all claim of damages that had or should be sustained by the Havens by reason of the use of the water of said river in supplying said canal in the manner the same was supplied at that time at said feeder. The words of the grant are equally specific and guarded.
They “ remise, release, and forever quit-claim, to the board of trustees and their successors in office, and to the State of Illinois, whenever said canal shall revert to said State, the right to use and appropriate the water of the said DesPlaines river at the feeders at Joliet below guard lock Ho 1, for supplying the said canal for the purposes of navigation in the same manner the water in said river, in connection with other feeders is now used for supplying said canal.”
There can be no doubt, from the language employed, that it was the real intent of the parties, by said grant to fix and determine as definitely as it was possible to do, the quantity of water that the canal trustees could rightfully use and appropriate to the exclusion of the Havens. It is carefully limited to such a quantity as would be necessary in connection with other feeders to supply the canal for navigation purposes.
The phrase “ in connection with other feeders,” was not intended by the parties, as counsel seem to suppose, as extending the uses for which the water of the river could be appropriated, but to more effectually limit the amount that could be diverted for the purposes of navigation. The true meaning appears to be, that the trustees could withdraw from the river the additional quantity of water required for navigation purposes, beyond that supplied to the canal by the other feeders, then in use.
It is contended, however, that owing to the improvement in the summit level, by which the waters of Lake Michigan are caused to flow through the canal into the DesPlaines river, by way of the discharge gates at Horton’s mills, double the quantity of water runs over the dam of appellant since the diversion now complained of, than did before such improvement was made, and the appellant instead of being damaged is in reality benefitted; and that the canal authorities can rightfully take from the waters of the river, the like quantity and make use of the same for any purpose they may desire.
Several cases have been cited by counsel as sustaining such position, and without controverting the doctrine therein announced, we are of the opinion that under the facts of this case the right contended for does not exist, even under the authorities cited.
Tested by the rule of law declared in those cases, disregarding for a 'moment the contract in evidence, the correctness of the conclusion of counsel depends upon the intention with which the water was turned into the river from the summit level. If the canal authorities, provided a surplus of water on the summit level for the purpose of supplying the Channahon level, and made use of the DesPlaines river as a mere conduit to convey the water from the one level to the other, then, perhaps, under said decisions they might have the right so far as appellant is concerned, to withdraw such surplus water from the river above plaintiff’s mills, as in such case the said decisions appear to hold that the possession of the water would be still retained by them for their own use.
If however, such water be discharged into the river as a means of getting rid of it, it not being required for the use of the' canal, then even under the authorities referred to, it becomes a part of the river itself and subject to like uses and governed by the same rules as the original waters of the stream.
The object of the canal authorities in turning the water into the river at Horton’s Mill, is fully disclosed by the statement of facts. The case states “ that there is more water introduced into the summit level of said canal by reason of the improvement known as the deep cut, than is required for navigation purposes, and more than is required for the purposes of the canal between locks one and two, two and three, and three and four, on said canal between Lockport and Joliet; that the use of such surplus water is leased to Horton & Co., at Lockport, so far as they may require, and the balance is discharged by a spillway; both the water used by Horton & Co. and that discharged by the spillway, being conducted by a race shown in the map, from the hydraulic basin, to the DesPlaines river, etc. It is equally clear that such water so discharged at Horton’s Mills was not required for the purposes of navigation on the Channahon level, as it is stated that the requirement of that level is but 2800 cubic feet per minute, while the upper level required 3300 cubic feet per minute, and of course discharging that amount into the river above the Channahon level. This improvement was made by the city of Chicago, for the purpose of creating a current from the lake and Chicago river, through the summit level of the canal, thereby establishing a system of drainage for the city, that it was hoped at the time would be adequate to the wants of the people, and in order to maintain the necessary current it xvas indispensible that an outlet should be provided at the foot of the summit level-for the discharge of the water flowing into the canal at the city, for if the water was to be retained by the lock, the very object of the enterprise would be defeated.
The means for the discharge of this surplus water was found by turning it through the gates at Horton’s Mill, into the DesPlaines river, and from thence into the Illinois river!
From the admitted facts and from the circumstances surrounding the making of the improvement, or deep cut so-called, the conclusion is rendered certain, that the said improvement was not made for the purpose of supplying the canal below guard lock Ho. 1, with water for canal purposes, but for the purpose alone of improving the drainage facilities of the city of Chicago by making the canal an outlet for its sewers by way of the DesPlaines river. All the facts and circumstances negative the idea that it was a part of the plan of the city in making such deep cut, or of the state in allowing the city to do so, to create a water-power on the Channahon level, or to furnish water for canal purposes. It is very clear to our minds that the water discharged into the DesPlaines river, at Horton’s Mill, under such circumstances must be considered as abandoned by the canal authorities, becoming thereafter a part of the waters of that river and subject in its flow to the uses of the lower riparian proprietors.
The right to the use of water continues only with its possession and once lost cannot be reclaimed.
The construction that we have given to the contract between The Havens and the canal trustees, also furnishes a sufficient answer to the position of the appellees. There is nothing in the statement of facts that causes us to suppose more water is now required for canal purposes on the levels -below lock Ho. 1, at Lockport, than was necessary for the same purpose when the contract was delivered and accepted, and the facts admitted show that at least 500 cubic feet per minute found its way into the river from the upper levels of the canal more than was diverted from the river at guard lock Ho. 1, for supplying the Channahon level, and of course, this amount followed the course of the stream to the mill of the plaintiff. As we have said, the right to such surplus water must have been considered by the parties in their settlement, and the canal trustees, knowing that the quantity of water turned into the river by the canal, might and probably would be increased or diminished by changes in the seasons; causing high or low water in the feeders supplying the upper canal, or from other causes that might arise, such as the completion of the canal according to the original plan, which plan counsel say, was abandoned only for the time being, saw proper, in consideration of the prior right to appropriate all the water of the river necessary for navigation, to accept a grant limiting their right to thus use and appropriate the water to the quantity required for such purpose.
If they had the power to enter into such contract (and their authority to do so is not questioned by counsel), and they have by such contract agreed to restrict themselves in their use of the waters to a certain quantity, we are aware of no principle that will allow them to divert from the river a greater quantity, to be used by them for a purpose entirely different from that contemplated by the contract.
It is admitted that the appellees have withdrawn from the Channalion level of the canal, which is supplied from the river above plaintiff’s dam, from 6000 to 8000 cubic feet of ■water per minute for the two years preceding the trial, using the same as motive power for their mill, discharging it form their wheels into the river below plaintiff’s mill; that plaintiff had the machinery wherewith to use such water, had it not been so taken by defendants, and that in consequence of such diversion of the water the annual damage to the plaintiff was from $800 to $1,000, and up to time of the trial the damage to the plaintiff was from $1,600 to $2,000.
It is urged that the appellant has no remedy for such damages in a court of law; as the canal commissioners’are not liable to be sued, and the appellees being their lessees are entitled to like immunity.
It is true the appellees take the water from the canal and river by virtue of a lease from the canal authorities, by its terms giving them the privilege or right to use such water for mill power, but it is clear that if the commissioners could not lawfully divert such water, so taken and used by the appellees, they could confer no right upon the appellees so to do. The act if done by them would be none the less wrongful because, being officers of the state, public policy does not permit them to be sued. It is not perceived how they can clothe a party who voluntarily commits a trespass for his own benefit, even, if done by their permission or command, with their official robes or invest him with the immunities claimed to be granted to them as such officers by the statute. The appellees are not in any sense the servants of the commissioners, engaged by them to assist in the performance of their duties as officers of the State, but in all their acts are working for their own gain •and profit.
Whether a suit at law could be maintained against the canal commissioners as such, for diverting the water of the river for canal uses is a question not necessarily raised upon this record, and for that reason we decline to discuss it.
The defendants below for their own gain and profit, took from the river by means of the canal large quantities of water that otherwise, as admitted, would have naturally flowed to the mill of the plaintiff, thereby causing the damage to him.
This act the defendants justify under the authority of the canal commissioners. The canal commissioners not acquiring the right to thus divert the water by the grant to them, and having no other prior right so to do, the justification relied upon by the defendants, fails.
We do not, however, consider that such diversion of the water is caused by the act of the commissioners. They gave the defendants the right and privilege so far as they were concerned to so take and use the water of the river, but the defendants were not obliged to accept the lease nor to act under it. If they had not erected their mill and taken the water from the canal to run their machinery no injury would have occurred to the plaintiff. If they had taken the water through a ditch of their own construction the law would pronounce it a tort, and we do not perceive wherein it is any less a wrong.' because they bring it to their mill by a canal owned by other parties, even if the owners of the canal permit them to use it for such purpose.
From the best consideration we have been able to give this cause, we conclude that the judgment of the court below should have been for the plaintiff, and as all the facts in the case are admitted, as well as the amount of damages annually sustained, no good reason exists for remanding the cause.
It is admitted that the diversion of the water had continued for two years up to the time of trial, which was May 26th, 1880. The suit had then been pending for one year, leaving one year during which the damages can be recovered in this suit. .As the damages have been admitted to be from $800, to $1,000, yearly, we think the plaintiff should recover for at least the lesser sum.
The judgment of the court below will be reversed, and a judgment entered in this court in favor of the plaintiff below and against the defendants below, for said sum and costs of this court, with execution for the collection thereof.
Judgment accordingly.