Kimberly-Clark Co. v. Patten Paper Co.

140 N.W. 1066, 153 Wis. 69, 1913 Wisc. LEXIS 134

Opinion

Timlin, J.

The plea in abatement was disposed of by the decision of this court in Telulah P. Co. v. Patten P. Co. 132 Wis. 425, 112 N. W. 522. The defendant interposed a plea of the statute of limitations and adverse possession, but also interposed its counterclaim, which presented for investigation and adjudication questions so interrelated with plaintiff’s claims under its several grants as to open up the whole subject for equitable consideration and decision. Besides, the wrong asserted by the plaintiff was continuing or constantly recurring. Cedar Lake H. Co. v. Cedar Creek H. Co. 79 Wis. 297, 48 N. W. 371; Schuster v. Milwaukee E. R. & L. Co. 142 Wis. 578, 126 N. W. 26; Ramsdale v. Foote, 55 Wis. 557, 13 N. W. 557; Gilman v. S. & F. du L. R. Co. 40 Wis. 653; Colrick v. Swinburne, 105 N. Y. 503, 12 N. E. 427; Reed v. State, 108 N. Y. 407, 15 N. E. 735.

The gist of- plaintiff’s action is that the defendant draws from the passing water from day to day for its use more water than it is entitled to under the terms of its prior grant, thus diminishing the quantity to which plaintiff is entitled from day to day. Actions to recover damages thereby caused which accrued more than the specified number of years before the commencement of such action, actions to recover damages for or to prevent the wrongful diversion of a watercourse, or actions to recover damages for or to restrain the taking of land by flowing it, and other kindred cases, would doubtless be barred after the like lapse of time. This is a case where both parties were using the water as of right, and the injury consists in one continuing from day to day to use more than his proper share of that which the forces of nature were engaged in consigning to the parties and other riparians and daily delivering along the accustomed channel. Each party used only the water for this particular purpose as it'flowed by, and the volume was at times so great that the utmost use by either did not exceed his right and again so small that his use did encroach upon and impair the right of the other. ItSTo statute of limitations or of adverse possession, therefore, bars the plaintiff’s action, and upon the question of laches each seeks affirmative relief and honors are quite even between the parties.

With reference to its grant of the residue from West, the plaintiff is in privity with its grantor, and, deriving its title through or under West, is bound by the decree in Valley P. & P. Co. v. West, reported in 58 Wis. 599 (17 N. W. 554). This is too elementary to require citation of authority. But plaintiff’s grant of April 5, 1870, rests upon a different basis. West had made this grant prior to the litigation which resulted in the decree above mentioned, and his grantee, the then owner, was not a party to that suit. The plaintiff became the owner under this grant on June 9th, and under the grant of the residue on June 18, 1887, and West at no time since he parted with this interest to the Appleton Iron Company had any title or ownership therein. However physically connected or commingled in use at plaintiff’s mill the avails of these grants are, the grants themselves are separate and distinct in law. The property involved in the litigation between the Valley P. & P. Co. v. West did not include that of the Appleton Iron Company under the grant of April 5, 1870. In judgments or decrees wbicb do not determine status, but relate to the rights or interests of parties in and to certain property, privies are those who succeed to the ownership of that property or some right or interest therein under one of the parties to the litigation, directly or by mesne conveyances, by gift, by kinship, or by operation of law. Privity in such cases has reference to persons in their relation to property. Hart v. Moulton, 104 Wis. 349, 80 N. W. 599; Grunert v. Spalding (on rehearing), 104 Wis. 193, 205, 80 N. W. 589; Dull v. Blackman, 169 U. S. 243, 18 Sup. Ct. 333; Whitney v. Brunette, 15 Wis. 61. Hence the plaintiff as to its grant of April 5, 1870, in the foregoing schedule is not estopped or conclusively bound by the decree or decision mentioned. It has the ordinary right of any suitor to challenge the correctness of the decision of this court in the case referred to and to relitigate the matters determined by the circuit court in that litigation, to which no one of its predecessors in title was a party or privy.

It is found by the trial court and conceded by counsel on both sides of this controversy that the highest- efficiency or greatest power can be obtained from any given volume of water at a stated head by taking that water through the bulkhead or flume to the wheel at a velocity of two feet per second. Within limits, an increase of velocity through a given aperture carries a greater volume and actually produces more power, but less power in proportion to the volume of water used. The effect of this increased velocity is to reduce the head and thus render the water used less effective. In the grant of August 27, 1864, West to Woodward, there was this language: “Said premises embracing fifteen feet of the south end of the bulkhead, together with the privilege of drawing from said bulkhead as much water as said Woodward, his heirs or assigns, may need for whatever machinery may be erected on said premises.” Omitting extrinsic circumstances, two limitations are noticeable, viz.: the south fifteen feet of the bulkhead, indicating that water must be drawn through an opening of this width, less such supports or sides as would be necessary and proper for that purpose, at the same time leaving the bulkhead its due support. The other is that so much water may be drawn as .Woodward or his assigns may need for whatever machinery may be erected on said premises. The appellant seeks by construction to add to this, viz.: “the water shall not be drawn at a greater velocity than two feet per second.” Machinery has been for a long time erected and in use on said lot, which machinery requires to operate it efficiently 492 theoretical horse power, and to produce such power requires 29,412 cubic feet of water per minute to be drawn through the flume. This quantity in this time could only be drawn through by a velocity much exceeding two feet per second, and if the velocity were reduced to two feet per second the defendant would, through this opening, have only about one third of the power needed for the machinery erected on said lot. If the defendant would remove its machinery and reduce its mill so that it would require about 123 horse power to operate it and put in wheels accordingly, the water would be drawn to the wheels at the rate of two feet per second, but the present velocity is the product of and caused by the magnitude or extent of the power needed to drive the machinery on said lot. No doubt if the size of opening only was given and the volume of water not otherwise fixed by the terms of the grant, water should be taken at its most efficient velocity under the rule of Appleton P. & P. Co. v. Kimberly & C. Co. 100 Wis. 195, 75 N. W. 889. But we have an express measure of the quantity of water to be taken, not referring to a yard stick of very accurate length, it is true, but nevertheless expressly referring to it. In such case it is the office or function of interpretation to ascertain and declare only that which is doubtful. In order to derive from this contract an implication that the velocity must be that most efficient, we must contradict the measure stated in the grant or ignore it as if it did not exist. The bead being known, to hold that the size of the opening is fixed by the grant, as I think we must, and at the same time that a velocity of two feet per second is implied, would be to fix the quantity of water and the resultant horse power with great certainty, to be sure, but would also be to measure the extent of the grant by a different measure than that specified in the written instrument by the parties thereto. This cannot be done. Definite provisions cannot be ignored or overborne and eliminated by implications of this kind which control more general grants to whose terms they are not contradictory. We cannot at this late day consider this grant grossly improvident or made with a view to more ancient conditions of manufacturing or machinery and without knowledge of the power which might be necessary to drive the machinery of a pulp mill. In the litigation mentioned between the parties to the original grant West made no such claim.

The defendant is now drawing water through an aperture of thirteen feet six inches in the south fifteen feet of said bulkhead, the remainder of the fifteen feet being taken up with the side walls or supports of the flume and opening in the bulkhead, but part of the timbers supporting these walls extend about sixteen inches outside of or beyond said fifteen feet, not, however, on the property of the plaintiff. The bottom of said opening is as it was at the time of the Woodward grant and where it has remained since. To narrow this opening to less than thirteen feet six inches would merely increase the velocity with which the water is taken, reduce still more the head, and require a greater volume of water to operate the machinery now on the Woodward lot. An opening of thirteen feet six inches is, we think, within the terms of the grant, and there is no equitable ground upon which the plaintiff can narrow the opening on account of the projection of the side timbers, which projection affects it not in the least. Treating the question as a new one, we should construe this grant as aforesaid. But the case of Valley P. & P. Co. v. West, 58 Wis. 599, 17 N. W. 554, is, under tbe rule of stare decisis, also a very potent authority in favor of such construction, and the construction put upon this grant by the parties thereunto after that decision and in that litigation and the long acquiescence of such original parties and of the plaintiff and defendant herein in that construction tend still further to support this view. The grant appears to have been loosely worded, but the defendant is not entitled to use any water under it except what is needed for the purpose of driving machinery on the said lot, and of course in a reasonable manner. We do not wish to be understood as deciding that the defendant, after having erected machinery on the Woodward lot requiring for its operation the specified horse power, could increase the volume of water to which it is entitled under this Woodward grant by thereafter erecting machinery on said lot requiring a greater horse power. This question was not argued and is not decided. See, however, Gould, Waters (3d ed.) § 318a; Groat v. Moak, 94 N. Y. 115; Galloway v. Wilder, 26 Mich. 97. All the other questions relative to the construction of the Woodward grant presented in this case were, we think, before this court in the case of Valley P. & P. Co. v. West, supra, including the velocity with which water was then being drawn through the bulkhead, which much exceeded two feet per second. But it was not proven in that case that at a stated head a given volume of water attains its maximum efficiency when drawn at the rate of two feet per second, nor that its power-producing efficiency under presently known mechanical appliances per volume diminishes when this velocity is increased, and the same arguments as are presented here were not then made. Nevertheless we believe the Woodward grant was properly construed in that case, and we discover no act of the defendant in violation of the Woodward grant as there construed. This makes it unnecessary to consider the question of estoppel which was argued.

The grant of December 29, 1879, from West to Fleming was of “the right to draw from the canal and use for hydraulic purposes on the aforesaid tract of land so much water as not to exceed in all 200 horse power.” In the same instrument was a covenant of warranty of quiet enjoyment and of title which described the thing granted as “200 horse power net.” The defendant by mesne conveyances, none of which used the word “net,” became the owner of this right. The circuit court held that this conveyed 200 available or practical horse power, equal to 250 horse power theoretical, and a majority of this court (not including the writer) agrees with such construction, upon the ground that the word “net” must be given some force, and its most appropriate office in this instrument is to designate actual or available horse power; and on the further ground that the words “horse power” in the granting-clause of the instrument are ambiguous as meaning either available or theoretical horse power, and this word “net,” in another part of the same instrument, may be taken to show the intention of the parties to grant available horse power.

The defendant’s appeal is only from those portions of the judgment which determine (1) that defendant can under its grant of 1,000 inches of September 5, 1864, and its grant of seventy-five horse power of April 15, 1869, only use the water for driving machinery on the lots conveyed with such grants, and (2) that plaintiff can draw 31,702 cubic feet of water per minute under its grant of April 5, 1870, of 3,000 inches of water. The grant of September 5, 1864, was of a described parcel of land, “together with the right of taking so much water not exceeding 1,000 inches as” grantee “may need for any machinery which he or his assigns may erect on” the lot. That of April 15, 1869, the same, except the maximum is fixed at seventy-five horse power and the word “assigns” is omitted. Doubtless if we were convinced that “machinery which he (or his assigns) may erect on the lot” was used merely to measure the quantity conveyed, we would feel inclined to follow the cases of Johnston v. Hyde, 33 N. J. Eq. 632; Fowler v. Kent, 71 N. H. 388, 52 Atl. 554; and Hartford W. Co. v. Bugbee, 76 Vt. 61, 56 Atl. 344. But tbe quantity was otherwise limited by express words of tbe grant. Or if tbe grant was merely of a certain quantity of water, we would be advised by tbe rule in Luttrel’s Case, 2 Coke (Part IV) 86, cited in Johnston v. Hyde, supra. We bave been cited to no case directly in point and bave found none. But a dictum in Valley P. & P. Co. v. West, 58 Wis. 599, 17 N. W. 554, is in point. Tbe language of tbe Woodward grant is similar, but in that grant tliere is no express limitation of volume or power by inches or horse power. It is in any view a question of intention of tbe parties to tbe original grants by West. Whether tbe public has a greater interest in having one large or several small factories seems a rather fanciful test of what tbe original parties to tbe grants intended. Deducing their intention from tbe language employed, it seems that tbe words “need for any machinery which be may erect upon tbe lot” indicate a design to grant tbe water for use to drive machinery only upon tbe designated lot. This might be of considerable advantage to tbe grantor in various ways, such as advancing in value bis other adjacent lots, permitting him a larger residue by reason of inability or unwillingness to erect machinery on that lot, or in case of suspension of operations thereon, etc. We are satisfied that tbe learned circuit court construed these grants correctly, and tbe grantee must be limited to tbe use of tbe water upon tbe designated lot.

With reference to the findings of fact that in all said grants inches of water meant theoretical inches and horse power theoretical horse power, we find them supported by evidence and cannot undertake to reverse or change these findings. Upon this basis, the computation of the volume of water which plaintiff is entitled to draw at a head of ten feet, it is conceded, was correctly made and amounts to 31,702 cubic feet per minute.

It seems unnecessary to mention other matters. The conclusions of law of the circuit court, except as above modified, are all approved, and the judgment must be affirmed.

By the Court. — Judgment affirmed. Attorneys’ fees offset. No printing to be taxed, or other disbursement. Plaintiff to pay clerk’s fees.

Kerwin, J., took no part.