Butler Hard Rubber Co. v. Mayor of Newark

40 A. 224, 61 N.J.L. 32, 32 Vroom 32, 1897 N.J. Sup. Ct. LEXIS 41

Opinion

The opinion of the court was delivered by

Deptje, J.

The first question certified is whether the plaintiffs are entitled to more than nominal damages for the diversion of the water from the Pequannock river. The defendant contends that, as against the company diverting the waters of the stream above the dam, the Butler company has not such property in the stream as will enable it to have compensation for such diversion, and that the damages recoverable in this ease should be merely nominal. To maintain this contention the defendant relies on several cases in the English courts, of which Stockport Water Works Co. v. Potter, 3 Hurlst. & C. 300; Ormerod v. Todmorden, L. R., 11 Q. B. D. 155, and Kensit v. G. E. R. Co., 27 Ch. Div. 122, are types. In the Stockport Water Works case it was held, by a divided court, Pollock, C. B., and Channel, B., against the dissent of Baron Bramwell, that where a riparian proprietor conveys land not abutting on the stream and grants water rights to be used thereon, the grant of water rights, though valid as against the grantor, creates no rights for the interruption of which the grantee can sue a third party. The plaintiff in that case was a water company incorporated for the purpose of supplying the town of Stockport with water. The company had obtained a conveyance of a lot of land from a person who was a riparian owner. The land conveyed did not abut on the river. By the terms of the conveyance the grantor conveyed to the company the full and free use of the water which should at any time be raised by their pumps. The action was by the water company against a riparian proprietor higher up the stream for fouling the waters of the river, from which the plaintiffs derived their supply of water. The decision of the majority of the court was that the grant of water rights, though valid as against the grantor, created no rights in the grantee for the interference with which the latter could maintain the suit. The right granted by the conveyance was held by Pollock, G. B., in delivering the opinion of the majority of the court, to be a right in gross, which created a mere license. The water company laid its pipe by means of which it carried the waters of the river from the stream to supply its works. "When the conveyance was made the property conveyed was unimproved, and without any connection with the stream. The means by which the watei was to be drawn from the stream and utilized by the grantee were to be executed by the latter. At the close of his opinion, Pollock, C. B., carefully distinguished a grant in gross, such as was involved in that decision, from the case where a riparian proprietor makes two streams instead of one, and grants land on the new stream, which he declared to be analogous to a grant of a portion of a river bank, and not analogous to a grant of a portion of a riparian estate not abutting on the river. He adds that in the case of a grant of land on the new stream the grantee obtains a right of access to the river, and it is by virtue of that right of access that he obtains his water rights. In Ormerod v. Todmorden the action was brought by the plaintiffs, as riparian owners of lands further down the stream, to recover damages for injuriously affecting the water of the stream. The defendants in that case were not riparian owners, but they had a grant from a riparian owner of the right to lay pipes into the bed of the river for-the purpose of conveying water through the land of such riparian owner to their own premises. In the opinions in the Court of Appeals the defendants’ right was called a mere easement over the land, and it was held that by the terms of the deed no right to the flow of the water or to interfere with the flow had been transferred to the defendants. In that case, Brett, M. E., distinguished the ease in hand from Huttall v. Bracewell, which will presently be cited. In Kensit v. Great Eastern Railway Co. the.action was brought by a riparian owner further down the stream against the defendant for polluting and diminishing the flow of water by diverting it to premises of his own, which were not riparian lands. The defendants’ rights were acquired under an agreement with the riparian owner. The water was to be diverted by the aid of a three-inch pipe from the stream to the defendants’ premises. The defendants’ right is called in the opinions a license, or a grant to take water. Lindley, L. J., in his opinion refers to Stockport Water Works Co. v. Potter and Ormerod v. Todmorden, and says that neither of those cases decides that a licensee or grantee of a riparian proprietor cannot take any water from the stream; “ they decide nothing of the sort, nor do they warrant any such inference.”

It will be observed that in each of these cases a property right was recognized in the licensee, which was valid, at least against the grantor, and that the actions were by a riparian-proprietor or against a riparian proprietor, against whose rights as riparian owner a grant of water in gross was held to be invalid. The defendants in this case are not asserting rights as riparian owners, but are taking property under the power of eminent domain. In this as well as in other respects the cases cited are inapplicable to this litigation. The mill on the Butler Hard Rubber Company’s premises was built by the Newbrough company, and the dam and raceway were constructed by that company to supply the mill with water from the stream. The evidence shows that the Newbrough company was the owner of a considerable tract of laud on both sides of the Pequannock. As early as 1869 a waterpower was constructed by the company on this stream, with a dam and raceway in the location of the dam and- raceway there at the present time. The Newbrough company was then the owner of the Tyndall mill as well as the mill now owned by the plaintiffs. For this water-power, as then constructed, the water was taken from the upper end of the Newbrough tract by means of the dam, was carried by the raceway across the bend in the Pequannock, supplying power for both mills, and was discharged again into the Pequannock, below the. Tyndall property. The grant in the deed from the Newbrough company to Rosenthal and Strauss, under whom the plaintiffs acquired title, conveyed the mill and premises, together with all the rights of the dam and of all the flowage possessed by the Newbrough company, and in the deed the premises conveyed included the fee of the raceway to within seven and five-tenths feet from the southwest corner of the stone abutment at the gatehouse at the upper end of the raceway. The water rights passed, not as a license or as an easement, but as appurtenant to the mill premises. Nuttall v. Bracewell, L. R., 2 Exch. 1, and Holker v. Porritt, L. R., 10 Exch. 59, in which it was held that where the riparian owner creates a new stream, any person having land upon it by a grant from the riparian owner in virtue of which he obtains his water rights, would have the rights of a riparian proprietor, and entitled to maintain an action for an interference with his rights, are more nearly applicable to this case than are the other cases cited by the defendants from the English courts. Besides the courses and distances of the grant of the raceway, as delineated on the map made part of the description of the premises conveyed, indicate a grant to the headgates, which directly abut upon and open into the pondage of the stream at the dam. Under these circumstances it would be a refinement of construction to hold that, as between the parties to the deed, Rosenthal and Strauss did not acquire a title which made them riparian owners.

But it is unnecessary to discuss this subject further. The right the plaintiffs obtained to the use of the waters of the stream in virtue of the grant from the Newbrough company is undeniably property. . As such, under our constitution, they cannot be deprived of it except on compensation made. This principle applies whether the water taken or the injury done to the mill property by diverting the waters from the mill be considered. The destruction of private property, either total or partial, or the diminution of its value, by the act of the government directly and not merely incidentally affecting it, which deprives the owner of the ordinary use of it, is a taking, within the constitutional provision, which can be effected only under the right of eminent domain, subject to the constitutional limitation of making just compensation. Trenton Water Power Co. v. Raff, 7 Vroom 335, 343. Indeed, the statute under which the water company is proceeding deals with water rights as property, and as property distinct from land. The second section of the statute provides that in case of any disagreement between the city and the water company, or the owner of any other land or water rights which may be required for the said purposes or affected by any operation connected therewith, as to the amount of compensation to be made to said water company or to such owner, the Circuit Court shall, on application of either party, appoint commissioners to examine the real estate and personal property of said water company, or any other land or water rights and estimate the value thereof or damages sustained thereby. By the third section it is made the duty of the jury, in case of an appeal, to assess the value of the land or water Hghts and the damages sustained. Rev., p. 721. In the act of 1890, which provides for power of aqueduct boards or other water boards having the control of the water-supply in the cities of this state, to contract for and construct works, to purchase or condemn lands, waters and rights, the words “ lands, waters, personal rights or privileges ” are used. The plaintiffs, having property in these water rights, however acquired, are entitled to substantial damages for the injury resulting from the diversion.

The second question contained in the certificate is: “Should the damages be bas$d on the condition of the dam and raceway in 1873 ? (a) Had the plaintiffs the right to change the raceway so that it would draw more water through it than in 1873? (b) Have the plaintiffs a right to obstruct or use water from the raceway or flume for purposes other than power? (c) Have the plaintiffs a right to arrest the flow of the water through the raceway in its progress down to the Tyndall property ? ”

The trial judge, in the construction of the deed from the Newbrough company, under which the plaintiffs claim title, held that the title of the plaintiffs in respect to the diversion of water from the stream was limited to the height of the dam that was in the river in 1873—the structure and the efficient effect of the dam as it was at that time. The discussion of counsel was directed to the last branch of the proposition above set out—as to the right of the plaintiffs to change the raceway so that it would draw more water through it than in 1873.

By a deed dated February 12th, 1873, the Newbrough company conveyed to Richard B. Tyndall the premises below what is now the mill property of the Butler Hard Rubber Company, consisting of the tract on which the lower mill was located. That deed, after the description of the granted premises, contained the following provisions: “And the said party of the first part, for itself, for its successors and assigns, doth hereby grant, assign and convey to the said party of the second part, his heirs and assigns, the joint right with said party of the first part to all the water of the Pequannock river at the dam of said party of the first part, and also the joint right to take said water from said dam through the canal or raceway running from said dam to the mill of the party of the first part now on its premises and thence through the said tailrace of said mill to the premises herein conveyed; either party to take the water from the dam or river by the canal and flume as hereinafter provided, and in no other way. And the parties hereto do mutually covenant and agree that each of them, and their respective successors, heirs and assigns, shall have the right to repair or rebuild said dam and to repair or enlarge said canal at the cost and expense of the party repairing, enlarging or rebuilding. * * * Provided, also, such repairs, enlargement or rebuilding shall be made without unnecessary injury to the property of the other party, its or his successors, heirs and assigns. Said party of the second part, his heirs and assigns, shall have the right to construct a side channel or flume from said canal to said tailrace, and shall maintain the same at his or their expense, and not to the unnecessary injury of the property of the party of the first part. Said channel or flume shall be built in a good, durable and substantial manner, and, when built, shall be under the supervision of the party of the first part, its successors and assigns, who shall cause and allow the water of the said canal and river to flow freely at all times, either through the said channel or flume or through the said mill into the tailrace above mentioned, into and upon the premises hereby conveyed. The place for the construction of such channel or- flume shall be approved by the party of the first part, its successors and assigns, before work on it is commenced; and in case the said parties hereto, their heirs, successors and assigns, respectively, cannot agree upon a plan, each party hereto shall appoint a civil engineer to determine upon a plan; and in case of their disagreement, said engineers shall appoint a third engineer to make and furnish a plan for he construction of said flume, which said plan, when adopted by the three engineers or by a majority of them, shalL be binding on all the parties concerned. * * * Provided, that the water shall not be so taken from said headrace as to interfere with the use of the mill now on said premises near the lower end of said race, or to unnecessarily impair the value of the premises of the said party of the first part as a manufacturing property.”

The words “joint right” used in this deed express the purpose of the grantor to give to these parties an equal right to the water in the stream, to be used successively, the Newbrough company using it first for the purposes of their mill, and after its discharge into the tailrace then to be used at the Tyndall mill. This construction is necessary to give effect to the intention of the parties, having regard to the provisions in the deed and the location of the waterways as delineated on the map. By the terms of the deed either party was allowed to repair the dam, and the right was conferred upon each party to use the raceway, with the right to enlarge and repair the same. The difference in language with respect to the dam and that with respect to the raceway is of importance in this case. The right conferred and reserved was to repair or rebuild the dam; the right of each party with respect to the raceway was to repair or enlarge the raceway.

By a deed dated July 24th, 1873, the Newbrough company conveyed to Rosenthal and Strauss the tract of land on which the upper mill had been erected, containing about fifteen acres. The description in the deed was of the plot of ground on which the buildings of the Butler Hard Rubber Company are situate, and also the strip of land on which the raceway was situate, extending up the river to a point distant seven and five-tenths feet from the southwest corner of the stone abutment at the gatehouse at the upper end of the canal, marked “E” on the map: “Beginning, &c., together with all the rights of the dam and of all flowage possessed by the said party of the first part, subject, however, in all respects to all the joint rights, privileges, easements, conditions and covenants affecting the dam, the canal and the water in the Pequannock river, as expressed and contained in a certain deed of conveyance executed and delivered by the said party of the first part to Richard B. Tyndall, and bearing date the 12th day of February, 1873. * * * Also subject to the right of the railway company to take the water from the canal to the tank for the supply of their locomotives and engines, the conduits or watercourses which may be erected for that purpose to be maintained at the cost and expense of the said railway company and in such manner as not to damage the canal. The said party of the first part reserving, however, the right to build and erect a dam across the said Pequannock river at such a point as the said party of the first part may hereafter determine, and above the railway bridge as the same is now located, and also the right to flow the land on the southerly side of the said river to within five feet from the top of the dam as now located, together with all and singular the houses, buildings and all the rubber machinery and mechanics’ tools now in said buildings, trees, ways, waters, profits, privileges and advantages, with the appurtenances to the same belonging or in any wise appertaining, subject as aforesaid; also, all the estate, right, title, interest, property, claim and demand whatsoever of the said party of the first part of, in and to the same and of, in and to every part and parcel thereof except as aforesaid.” The Butler Hard Rubber Company are the owners of the title of Rosenthal and Strauss which the latter acquired by this deed.

When the Newbrough company conveyed the Tyndall mill, that company remained the owner of the upper mill. Looking merely at the covenants and conditions in the Tyndall deed, the Newbrough company had in common with Tyndall the right to repair or rebuild the dam and to repair and enlarge the raceway. But the rights of the Newbrough company were not limited by the prescriptions in the Tyndall deed. The company remained the owner in fee of the upper mill and of the raceway, dam and water-power, with all the right to alter and enlarge that belonged to the owner of the fee; provided, only, that in making such changes the rights of Tyndall should not be impaired. The raceway was widened in 1880, so far as it appears, by the consent of the owners of. the Tyndall mill, and no alteration in the raceway by widening it could possibly be regarded as impairing any right of the owners of the Tyndall property. In the deed by the Newbrough company to Rosenthal and Strauss all the rights of the Newbrough company were conveyed without qualification or restriction except that the conveyance was subject to the right of the railway company to take water from the canal to their tank for supplying their locomotives and engines.

The contention of the defendants is that Rosenthal and Strauss were deprived of the right to enlarge the raceway, and restricted to its venting capacity, as it was in 1873, by the provision contained in their deed which allowed the Newbrough company to build and erect a dam across the river, below the dam that was on the premises in 1873, and to flow the lands granted to Rosenthal and Strauss to within five feet from the top of the dam. The conveyance by the Newbrough company to Rosenthal and Strauss was expressly of “ all the rights of the dam and of all the flowage possessed by the said party of the first part,” subject only to the conditions and covenants affecting the dam and raceway and the water contained in the Tyndall deed, and the right of the railway company to take water from the canal to the tank to supply their locomotives. In virtue of these conveyances and of the stipulations contained therein, the right of Rosenthal and Strauss and those who succeeded to their title to widen and enlarge the raceway is undoubted. The Newbrough company, in virtue of the right reserved to erect a dam below the dam conveyed to Rosenthal and Strauss indicated no purpose to interfere with the waters or water rights of either the owners of the Butler mill or the owners of the Tyndall mill. The dam in question was never built, and, if built, would only be available to receive the water which might be discharged over the dam. If there was any doubt as to the construction of this deed, the rule of construction that the terms of the grant should be construed most strongly against the grantor will resolve this question in favor of the grantee. The widening of the race w'as made in 1880, presumably with the consent, if not concurrence, of the owner of the Tyndall property. At all events, the raceway was widened before these proceedings were commenced. Having been done lawfully, the water company, in the condemnation proceedings, must take the premises as they were when the proceedings commenced, and compensation must be made accordingly.

The other two subdivisions embraced in this question (a and b) can be answered shortly. The plaintiffs had no right to use the water from the raceway and flume for any other purposes than power, nor a right to arrest the flow of the water through the raceway in its progress down to the Tyndall property, except as such an interference with the flow of water or its use was justified by the Tyndall deed. But the remedy for the invasion of any right of Tyndall’s would be by action, or some proceeding by the owners of the Tyndall property to restore the delivery of the water from the tailrace in the manner stipulated for in the Tyndall deed. There was evidence tending to show that the plaintiffs, by means of a six-inch pipe, had carried from the headrace water for use for mechanical purposes in the mill, not as water-power. If this use of the water interfered with the right of Tyndall, the redress for such an injury would be by suit by Tyndall or those who succeeded to his estate. Admitting that the acts of the plaintiffs in this respect were unlawful, and the company made itself liable to an action at the suit of the owners of the Tyndall mill, such an unlawful act did not carry with it the forfeiture of the plaintiffs’ rights in their water-power. The plaintiffs had been accustomed to close the gates leading to their mill in order to allow the raceway to fill up, thereby arresting the flow of the water and increasing the power derived therefrom in their mill. This custom was not objected to by the owners of the Tyndall mill, probably because it was for the advantage of both parties in storing water for use in both mills. The deed to Tyndall authorized the grantee to construct a side channel or flume from the raceway to the tailrace, and to maintain the same—not to the unnecessary injury of the upper mill. The deed contained the further provision that this side channel should be built under the supervision of the Newbrough company, its successors and assigns, and that they should cause and allow the water of the said raceway and river to flow freely at all times, either through the side channel or through the said mill into the tailrace, with a proviso that the water should not be taken from the headrace so as to interfere with the use of the upper mill, or to unnecessarily impair the value of the premises of the Newbrough company as a manufacturing property. Having regard to the relative situation of the two mill properties, and the fact that the owners of the Tyndall mill had primarily a right to the use of the water only after it had been utilized for waterpower at the upper mill, and that the restriction in the deed that the water so taken by the side flume should not interfere with the use of the upper mill or unnecessarily impair the value of the property, the reservation of such a right did not seriously affect the value of the water-power for the upper' mill. Its effect was mainly to prohibit the plaintiffs from discontinuing the use of the raceway as a means of carrying the water that is left after the amount taken by the city is abstracted from the river to the site of the Tyndall mill. The attention of the jury was called to the situation of the title, and it was no doubt properly appreciated by them.

The third and fourth questions certified will be considered together. They are as follows :

“ 3. Should the jury have been instructed that the evidence of the cost of installing and maintaining and substituting a steam plant with which to run machinery heretofore operated by water-power, was competent as a means of arriving at or determining the difference in market value of the property on account of the diversion, according to the terms of the charge?

“ 4. Should the jury have been allowed, in estimating the difference in market value of the plaintiffs’ property by reason of the diversion, to consider the theory of supplying the power by other means, as directed by the court in the charge ? ”

The trial judge instructed the jury that for the purpose of ascertaining what is just compensation the law had established the legal rule that if the whole property be taken, the market value of the property, as between an owner willing to sell and a purchaser desiring to buy, was the measure of compensation. “If part only be taken, or, in the language of the act, the property be ‘ affected’’ by the operation of the works for which property is taken, then the problem is this: The difference between the value of the property before it was taken or interfered with and the value that remains in the property after the injury is done, market values in both instances being determined on the basis of what, in the judgment of the jury, the property under either circumstances would bring in the market as between a purchaser desiring to buy and an owner willing to sell. In proceeding with this investigation the commencement of the inquiry, the foundation on which your verdict is to be constructed, is the market value of this property before this water was diverted, the market value that would, in the judgment of the jury, under the evidence, have been realized by a sale of this property if the owner had put it in the market, desiring to sell it, aud effected a sale to a purchaser willing to buy. That proposition must be decided by the evidence in this case, qualified, of course, and modified by the result of your own view and your observation of the premises. When you have ascertained that—that is, the market value of the property before these works were constructed—you commence the construction of a verdict on the principle I have already stated, the comparison of market values before and after. The sum arrived at cannot be more than the market value of the premises, and if part only is taken it will be less, if that which is left possesses any market value.”

The trial judge then referred to the extent and efficiency of the water-power when the proceedings to condemn were taken. “The plaintiffs, at that time, had two wheels, a thirty-six-inch wheel, with a ventage of twenty-four millions of gallons in twenty-four hours, and a forty-three-inch wheel, with a ventage of forty-three millions of gallons, making an aggregate ventage capacity for twenty-four hours of sixty-seven million gallons of water. There is evidence that the stream, in its natural state, is subject to fluctuations occasioned by high water and drought and also subject to interference because of ice, and there is no evidence that the water-supply was adequate to drive both or either of these wheels throughout the year. The highest estimate that I recall from the evidence is an estimate that the forty-three-inch wheel could be run from ten to ten and a half months in the year, and the thirty-six-inch wheel for a much less time, and the evidence on the part of the plaintiffs is that for a considerable portion of the year the water-supply was not such as would enable them to run both of these wheels with a full head. There is other evidence in the case, a great deal of it on both sides, with regard to the capacity not of the machinery, but of the water-supply, to furnish the power necessary to drive these wheels.”

After referring to the evidence with respect to the changes in the water-power from 1869 to 1872, the trial judge said: “ Now, gentlemen, when you have ascertained the extent and the value of the plaintiffs’ water-power before the diversion, then you advance another step, and that is to ascertain the extent to which the plaintiffs’ property was, in the language of the statute, ‘ affected ’ by the diversion of this water; in other words, the nature and extent of the injury done, and the character and value of what was left. In order to determine that question, the first consideration is the extent of the legal right acquired by the city in these condemnation proceedings. What have they taken, and what have they a right to take? In order to answer that question, we go back to the issue that is made in this case, and I read this extract: ‘ The petitioners [that is, the city] limited and restricted their application for their right to condemn to take in such proceedings, as follows: the right to divert and take from the Pequannock river, at the dam of the Macopin intake reservoir, as now located and constructed, as shown on the map produced, so much water as will be sufficient to furnish the said city with fifty millions of gallons of water each and every day.’ That is what the city proposes to take, and that is what, by your verdict, it will acquire a right to take; and whether it uses all of this .water or not is a matter, on this branch of the case, of no im.portanee. * * * When you ascertain how much the legal right of the city to the use and appropriation of this water, in its exercise, would affect the power that is left, then decide for yourselves the value of the remaining power, bearing in mind that the city takes only water rights, and leaves everything else in the possession and enjoyment of the owner. And when you have done that, subtract that from the market value of the property before it was interfered with, and you have got your verdict. * * * The legal proposition (the difference in market values) cannot be set aside; but how that legal proposition is to be ascertained, by what methods and by what evidence, depends on the situation of the particular case. * * * There is evidence of sales of water-power on this stream, reflecting on the value of this water-power considered simply as a water-power, unimproved at the time this diversion took place. That evidence you are by no means to reject. You are to give it such effect, with regard to the market value of this property, as it ought to have; bearing in mind that this water-power has been improved, and that the abandonment of this whole plant has not been suggested as a reasonable course to adopt.

“The theory on which this case has been presented, and on which I propose to present it, is that of supplying by other means the power which is taken away by the diversion of this water.”

The evidence shows that after 1873 the mill on the plaintiffs’ premises had been very much enlarged, and new and expensive machinery, not only for manufacturing purposes, but for additional power, had been set up, increasing the market value of the plaintiffs’ premises, independent of the water-power, until it reached a large sum. In 1895, a double-cylinder Corliss engine rated at five hundred horse-power was set up for use in driving machinery, part of which had been driven by water-power before that time. The contention on the part of the city was that if the five-hundred horse-power engine was compounded, enough power might be obtained in that way for driving all of the defendants’ machinery after the fifty millions of gallons of water a day had been abstracted. The other method suggested was by the installation of a separate plant for the purpose of supplying additional power. The trial judge instructed the jury: “ That method of readjustment is one for your consideration. If you find, as the result of the evidence, that that is the proper way for readjusting this establishment, with a view of restoring what has been lost by the diversion of the water, then the cost of that method of reconstruction will furnish you with the means of deciding, on the legal rule, the difference in market value. * * * Which method, gentlemen, would a judicious owner adopt to meet the diminution in his power by reason of the diversion of the quantity of water taken by the city under these proceedings? Would he make a connection with the engine that is there, or would he install a new plant for the purpose of driving the machinery on that line of shafting? When you determine that, then the cost (and when I speak of cost, I don’t confine it wholly to first cost, as yo.u will see presently) of furnishing that supply will be used, not for the purpose of figuring out a verdict, but as a means of deciding on just compensation—bearing in mind that while the plaintiffs are entitled to compensation which would restore what they have lost, they are not entitled to have their property improved beyond its original value by means of a proceeding of this character. * * * The plaintiffs are entitled to just compensation. And I use that word ‘just’ in a double sense—in the first place, just, in the sense of fairness; and in the next place, just, in the sense of limitation—just compensation. In the second place, they are not entitled to have their property made more valuable in the market than it was before the condemnation was made; they are entitled to just compensation, nothing less, nothing more.” Speaking of the utilization of the five-hundred horse-power engine by compounding it, the trial judge said : “As I understand the evi deuce, and I believe that is the case, the compounding of an engine doesn’t increase its efficiency; it simply saves fuel. If that method of reconstructing these premises to meet the altered condition of affairs meets the approbation of the jury, make compensation on the basis of such a readjustment. You ought to allow the plaintiffs the amount of the cost of that five-hundred horse-power engine, in comparison with the amount of work that was done by that engine elsewhere and the amount of work required to be done there.” This instruction was obviously correct. The plaintiffs were the owners of the five-hundred horse-power engine provided by them for present as well as for future use in their works. When these condemnation proceedings were had, they had their water-power, and they had also, in addition to the power derived from the stream, the five-hundred horse-power engine. Both these sources of power the plaintiffs owned, with the right to use both in the present or in the future, as circumstances might require. If that engine be utilized in driving machinery which was made destitute of power by the diversion of this stream, to that extent the capacity of the plaintiffs’ plant, made up of the five-hundred horse-power engine and the water-power as it was originally, would be impaired. If a trespasser should have entered on the plaintiffs’ property and removed the engine, the fact that the company could, by changing its gearing, repair the loss in whole or in part by a readjustment of its water-power would not, in a suit for taking the plaintiffs’ property, either be an answer to the suit or mitigate the damages. The jury was instructed that if the method of reconstructing the premises by compounding the five-hundred horse-power engine met the approbation of the jury, they should make compensation on the basis of such a readjustment, but that the jury in that event should allow the plaintiffs’ the cost of the five-hundred horse-power engine, in comparison with the amount of work that was done by that engine elsewhere, and the amount of work to be done there. These instructions were correct-.

A certificate in conformity with this opinion will be sent to the Circuit Court.