Loch Sheldrake Associates, Inc. v. Evans

118 N.E.2d 444, 306 N.Y. 297, 1954 N.Y. LEXIS 1038

• Court: New York Court of Appeals
• Decided: February 25, 1954
• Status: Published

Opinions

Desmond, J.

Our question is as to the meaning and effect of a reservation of water rights appertaining to a natural lake or pond known as Loch Sheldrake, in Sullivan County. Into a deed, which was given in 1919 to Greenspan and others (predecessors of plaintiff) by persons named Divine, and which conveyed to plaintiff’s predecessors the whole of Loch Sheldrake and all its shores, there was written this language: “ The parties of the first part hereby expressly except and reserve from this conveyance the right and privilege of damming the Sheldrake Lake or Pond and the outlet thereof, and of impounding the waters of said Lake or Pond and raising and drawing the same, together with the right of ingress and egress for the purpose of constructing, repairing and maintaining the said dam, or any part or portion thereof, and any and all conduits, raceways or pipes connected therewith or leading therefrom, which now exist or may hereafter be constructed. Such waters, however, shall not be drawn lower than the natural low water mark of the said Lake or Pond, and they shall not be raised higher than the normal or natural high water mark of said Pond, except that in case of unusual or extraordinary flood the same may be impounded for not to exceed forty-eight (48) hours at any one time.”

All the rights thus reserved were, in 1927, conveyed, together with a so-called “ mill lot ” some distance south of Loch Sheldrake, by the Divines, to Isidore Evans, defendant’s husband and predecessor in title. Beginning about 1915, and continuously since then, Mr. and Mrs. Evans have operated a large summer hotel on other lands owned by them, not acquired from the Divines, south of the mill lot, and about a half mile south of Loch Sheldrake. Many years before any of the deeds herein referred to were given, a dam had been built, in an outlet of Loch Sheldrake, by the Divines, and from it, through a pipe, water was carried by gravity to and for a mill formerly operated by the Divines on the “ mill lot ”, the water flowing, after such use, out of the mill’s tailrace into a brook. Undoubtedly, the Divines made the 1919 reservation of the Loch Sheldrake water rights, because of their then ownership and operation of the mill, but the reservation itself not only did not limit the water diversion to mill uses (it does not mention either the mill lot or the mill), but, on the contrary, the reservation (supra) embodied its own sole limitation, that is, that the dam be so used that the waters of the lake will be not drawn below low-water mark, or flooded above high-water mark. Before and after the giving by the Divines of the 1919 deed first above mentioned, in which the water rights were reserved, the Divines at times sold, to Mr. and Mrs. Evans, for use at their hotel, water which had been carried by the outlet pipe to the mill lot. After the hotel owners had acquired the mill lot, the mill operations were (in about 1935) discontinued and, ever since, large quantities of water, drawn from the lake through the pipe to the old mill lot, have been piped further on into the hotel grounds for use at the hotel by defendant.

This suit was brought to obtain, for plaintiff, present owner of the lake and its shores, a declaratory judgment that defendant, by the water right reservation (supra), obtained no more than an easement which was appurtenant to the mill lot and which, as plaintiff asserts, permitted the use of the water for the now discontinued mill uses only. Plaintiff demanded an injunction and money damages, also. Defendant’s opposing position, with which we will agree herein, is, as expressed in her answer, that by her succession to the water rights reserved in the 1919 deed, she “ is entitled to the sole, absolute and free use of the waters of Loch Sheldrake between the low and high water marks for the benefit of her business and business properties.”

The trial court came to the conclusion “ that the reservation of the right and privilege to the use of the waters of Loch Sheldrake was a reservation in connection with and appurtenant to the Mill lot and for which property only the privilege reserved was intended ”, that defendant, succeeding to the rights of the Divines under that reservation, has no right to draw or use the lake waters except for mill or manufacturing uses on the mill lot, and that such rights as defendant has are not exclusive and do not exclude plaintiff from drawing and using the lake waters. The judgment, entered after trial, perpetually restrained defendant from drawing water other than for mill purposes.

On defendant’s appeal to the Appellate Division, that court took a view of the case much more favorable to her. It concluded that the 1919 reservation was not limited, expressly or by implication, to use of the water for mill purposes, and that, while defendant’s assertion of an exclusive right to use the water for any purpose whatsoever is perhaps too broad, “ she has the right ’ ’, said the Appellate Division, ‘ ‘ to use the water for the purposes the Divine family used the same for at the time they conveyed the lake to Greenspan and others ” (282 App. Div. 51, 58), that is, at the time of the giving of the 1919 Divine-Greenspan deed containing the reservation.

Plaintiff alone appealed to this court, so we are powerless to modify the judgment, in defendant’s favor. Despite holdings or seeming holdings by both courts below, and concessions or seeming concessions made at one time or another by both parties, that the reservation quoted in the first paragraph hereof from the 1919 deed, created an <c easement appurtenant ” to the mill lot only, we do not think that such was the result. We think that what the grantors Divine reserved, and what defendant’s husband, and defendant, as his successor, got by subsequent grant from the Divines was not, in strictest terms, an easement at all, but an interest in the Loch Sheldrake lands, in the nature of a right to take a “ profit ” from those lands (see Huntington v. Asher, 96 N. Y. 604, 609; De Witt v. Harvey, 70 Mass. 486, 488, 489; Goodrich v. Burbank, 94 Mass. 459, 461; French v. Morris, 101 Mass. 68, 71). Such a right, not appurtenant to any other lands, may be used by its owner at any place or in any manner. As the Supreme Judicial Court of Massachusetts pointed out in Goodrich v. Burbank (supra, p. 462): “ Eights of water duly granted by deed, not appurtenant to any particular parcel of land, may be used by the owner at any place or in any manner, so long as he does not interfere with, or impair the rights of others ”. In that same decision, the Massachusetts court recognized ‘1 the right to take a certain quantity of water from a mill pond as a distinct and substantive subject of grant, without restriction as to its use at any designated place ”. (P. 462.) The New York cases above cited are in agreement with those statements of law.

The briefs here join in debate as to whether the Divine-Greenspan 1919 deed reservation created an ‘ ‘ easement appurtenant ” or an “ easement in gross If we are to speak with strictest accuracy, there is no such thing as an “ easement in gross ” (although the phrase enjoys respectable usage, as in Wilson v. Ford, 209 N. Y. 186, 196, and other New York opinions), since an easement presupposes two distinct tenements, one dominant, the other servient (Rangeley v. Midland Ry. Co., L. R. 3 Ch. 306, 309, Eng.; Pierce v. Keator, 70 N. Y. 419, 421). Obviously, the reservation we are construing was not the sort of mere personal, nonassignable, noninheritable privilege or license sometimes loosely described as an “easement in gross ” (see Saratoga State Waters Corp. v. Pratt, 227 N. Y. 429, 443). What the Divines reserved in their deed to Greenspan and his associates was an absolute right to take profit or produce from the land conveyed, a right which was capable of being conveyed in gross and was so transferred by deed to defendant, and is now held, by defendant, without reference to use on any particular lands (Huntington v. Asher, supra, and see Saratoga State Waters Corp. v. Pratt, supra, pp. 443-445). Of course, such a right to take water from a distant source might, by other and appropriate kinds of verbiage, be so granted as to be appurtenant to specific lands separated from the source of supply (Cady v. Springfield Water Works Co., 134 N. Y. 118, 121). But a reservation or grant in a deed, like every other contract “ must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent Avith the rules of law ” (Real Property Law, § 240, subd. 3). It is only when language used in a conveyance “ is susceptible of more than one interpretation ” that the courts Avill look into surrounding circumstances, the situation of the parties, etc. (French v. Carhart, 1 N. Y. 96, 102; Clark v. Devoe, 124 N. Y. 120, ; Wilson v. Ford, supra, p. 196, and authorities there cited). The settled rule for the construction of such instruments is that all evidence must be excluded which is offered “ to vary, explain or contradict a written instrument that was complete in itself and without ambiguity in its terms ” since, when words in a deed ‘ ‘ have a definite and precise meaning, it is not permissible to go elsewhere in search of conjecture in order to restrict or extend the meaning” (Uihlein v. Matthews, 172 N. Y. 154, 159, and cases cited). That is the first rule of construction, and in this case we need no other. The reservation in the 1919 Divine-Greenspan deed, in plain words of common use reserved from the conveyance, the “ right and privilege ” of damming the lake and its outlet, of impounding its waters “ and raising and drawing the same ”, subject to two conditions only, that is, that the waters should not be drawn lower than the lake’s natural low-water mark or raised higher than its natural high-water mark. In that reservation there was no ambiguity whatever, and so it was not necessary or permissible in this lawsuit to look beyond the deed itself for evidence which might suggest a lesser meaning. Obviously, no outside evidence could properly be taken as to the parties’ intent concerning the amount of water to be drawn off, since the reservation itself, in its references to low- and high-water marks, states its own precise quantitative limitations.

Plaintiff’s contention that the reservation resulted in the creation not of any absolute right but of an easement appurtenant to the mill lot only, is not based on anything in the Divine-Greenspan deed itself, but on the terms of an entirely different deed made by the Divines in 1918 to one Le Boy. That conveyance passed title, from the Divines to Le Boy, to a piece of land lying south of the lake property and between it and the mill lot, and not including any part of either of those two parcels. The grantors Divine, then still owning the lake and its shores to the north of the lands deeded to Le Boy, and the mill lot to the south of Le Boy’s parcel, excepted from the Le Boy grant the right to divert the outlet waters which ran from the lake and across the premises deeded to Le Boy, “ for the use and operation of the mill and turning shop and other manufacturing purposes ” on the mill lot adjoining the Le Boy piece to the south, and the right to carry the diverted waters through Le Boy’s land in pipes or conduits, etc. In other words, the Divines originally owned the lake and its shores (northerly piece), the mill lot (southerly piece) and a middle piece between those two, which middle piece they sold to Le Boy before they sold the lake to Greenspan and the mill lot to Evans. In the Le Boy deed, unlike the later Greenspan deed, the Divines reserved a true easement, expressly stated as being appurtenant to the mill lot, to run a pipe through the Le Boy lands to carry the waters from the Divines ’ lake to the Divines ’ mill lot. Clearly, that Divine-Le Boy exception or reservation set up a true easement appurtenant, but that deed is not in the chain of title (to the lake lands) which we are examining and is not mentioned or referred to in the later (1919) Divine-Greenspan reservation. As the Presiding Justice put it in his opinion for the Appellate Division (p. 57): “ The Divines were not bound by the language of a separate easement, created by a different deed, and for a different purpose, at a time when they could have used all the water in the lake if they so desired ’ ’. It would be fatuous to deny that the Divines in their 1919 reservation of water rights, were thinking of the easement they had already carved out of their grant to Le Boy, to carry waters over Le Boy’s lands and for the Divine mill to the south. But, in the later Divine-Greenspan reservation, the reservees fettered themselves with no such limitations as are found in the Le Boy easement. In the Greenspan deed the Divines retained, and surely they had the right to reserve, an absolute, total and unlimited right to draw off, not for any particular purpose or for use at any particular place, the lake waters down to low-water mark. The Divine-Le Boy deed displays a background, and supplies a reason, for the Greenspan reservation, but, by settled rules, it cannot vary it. Even if we were to read the Divine-Greenspan deed as stating (and it does not state) the purpose or reason for the reservation, such a statement alone would not limit the otherwise absolute character of the reservation (see Borst v. Empie, 5 N. Y. 33, 40; Lindenmuth v. Safe Harbor Water Power Corp., 309 Pa. 58).

Since we hold that the Divine-Greenspan reservation is non-ambiguous, it is unnecessary for us to discuss the question, as to which the courts below differed, of the admissibility of certain testimony tending to fix the time when water was first sold by the Divines for use at defendant’s hotel.

The views stated herein would, logically, lead to a conclusion, more favorable to defendant than the judgment appealed from, since our views would produce a holding that the right to draw off water in the lake is in defendant to the exclusion of plaintiff, and that there is no applicable limitation at all as to the purpose of such use. However, the appeal is by plaintiff alone, so we affirm.

The order should be affirmed, with costs. Of the questions certified to us by the Appellate Division, the first should be answered in the negative, the second not answered.