Mack v. Bensley

23 N.W. 97, 63 Wis. 80, 1885 Wisc. LEXIS 219

• Court: Wisconsin Supreme Court
• Decided: April 28, 1885
• Status: Published

Opinion

Cole, 0. J.

The court below fixed the starting point in the description of the seventy square rod tract of land on the section line fifty links east of the west barde of the slough, and we are disposed to adopt that construction as correct. There is difficulty in ascertaining the subject of the grant in this part of the deed, owing to the ambiguity of the language used when applied to the extrinsic facts. The deed describes the boundary of this tract as “ commencing at a point fifty links east of the bank of the slough on the section line, etc.; thence west along the section line fifty links to the bank of the slongb; thence np along the bank thereof three chains and fifty links to a large rock; thence east,” etc. Now it so happens that there are natural objects which will satisfy this description, whether the starting point be on the section line fifty links east of the west bank of the slough, or fifty links east of the east bank thereof, for there is a large rock at the requisite distance on either bank of the slough to meet the second call. It is this uncertainty in the description, when applied to existing natural objects, which gives room for doubt as to whether the starting point should be on the section line fifty links east of the west bank of the slough, or fifty links east of the east bank. Orestes Garrison, under whom both parties claim title, being dead, his grantee, the plaintiff Lyon, was not a competent witness to remove the latent ambiguity in the language of the deed. But we think it more rational, under the circumstances, to adopt the view of the learned circuit court on this point.

The next description grants certain rights of passage-way in land lying adjacent to the west bank of the slough, and requires no comment. Then follows the grant of the right to build and maintain a dam or dams at the upper end of the island; also to build and maintain a dam at the lowest place in said island, below said described premises, “. . . hereby intending to convey all the water power where the old "Whitney saw-mill was located, excepting and reserving forever a free passage-way over the dam for the purpose of running lumber,” etc. It is necessary to determine what rights and privileges are conveyed by this clause. On the part of the plaintiffs it is insisted that it grants and conveys the water power of the old Whitney mill, and all the rights, privileges, and easements which attached to that water power in the hands of Garrison at the date of the conveyance, which were essential to the most valuable use of such power, including the right to build and maintain dams, guard-locks, and other structures within and on the banks of the slough, necessary to the development and use of such power, subject only to the restriction or condition that the works should not interfere with or impair the use and enjoyment of defendant’s mill. We think this position is, in the main, sound. Grants of this natoe are to be so construed as to substantially secure all the rights which appear to have been contemplated by the parties. About this there can be no dispute. In view of that fact we are not prepared to say that the grant in this case was restricted to the extent the water power had been used at the Whitney mill when it was operated. Whatever water power might be created or utilized at the place where the old Whitney mill stood, including, of course, the right to build dams at the head of the island, and at the plaintiffs- mill, to such a height as would be most beneficial to the grantee, was conveyed; but subject, as we have said, to the condition that the full enjoyment of defendant’s mill was not to be impaired. Therefore we think the plaintiffs had the right to change the location of the guard-lock in the slough, if necessary for the security of their mill, providing they did not thereby prejudice defendant’s rights; and though the new guard-lock or dam is constructed on a different site from the old one which Lyon built, and is more than fourteen rods from the section hue, still, if in its present location it does not injure the defendant, she has no ground to complain on that account. We do not think the position of the guard-lock was deemed important by the parties to the conveyance, and it would be an unreasonable construction of the grant to hold that when it whs once located it could not be changed to another point on the slough. The water power where the old Whitney mill stood, with the privilege of maintaining the dams designated, were doubtless the important subjects in the contemplation of the parties. The court found that the new guard-lock constructed by the plaintiffs did not in any way injure the defendant in the use of her mill or mill property, but gave the plaintiffs a more valuable use of their mill property. This conclusion is surely warranted by the evidence. Therefore, as the change in the guard-lock does not injuriously affect the defendant’s rights, she has no reason to complain of it; because the grant of the water power carried, as an incident, the right to build the guard-lock or dam where it would make the water power most _ beneficial, providing nothing was done which prejudiced in any manner the defendant in the use of her mill property.

The plaintiffs claim the right to remove the slab wharf or filling on the west bank of the slough, below the defendant’s mill, in order to enlarge the channel and to increase its capacity to hold and carry forward all the water needed for the operation of their mills. "We do not think they have any right to do this against the objection of the defendant. This slab wharf could not diminish the volume of water which would flow in the slough, because the testimony shows that the channel at the head of the slough is narrower than at the place where the wharf is built. The slab wharf or filling does not extend far into the channel, and from the nature of things cannot materially impede the flow of water in the slough. But were it otherwise, it is a sufficient answer to the plaintiffs’ claim of the right to remove the slab wharf, that this structure existed when Garrison made his conveyance. The slab wharf is shown to be convenient for the full enjoyment of defendant’s mill; it is used to pile lumber upon, and to facilitate rafting it. The defendant has the right to maintain it as an essential part of her mill property, and the attempt of the plaintiffs to remove it was wholly unauthorized. If the slab wharf, by decay, pollutes the water going to their mill, rendering it unfit for use in the manufacturing of paper pulp, that is their misfortune. They certainly have no right to remove it against the wish of the defendant.

We have construed the grant as giving the plaintiffs the right to all the water power which could be created and utilized where the Whitney mill was located, without injury to the defendant’s property. The court below held that by the system of dams which had been constructed and was maintained at the head of the island, and by the new guard-lock, a greater water power was created than was ever used at the Whitney mill. The court found that the water power at the Whitney mill never exceeded eight and a half feet head, and it ordered that the dams be so lowered as not to raise a greater head than this. Now, we consider the evidence on this branch of the case as too indefinite and unsatisfactory to warrant any judgment in regard to it. The witnesses who testify on the subject had not made any measurements or taken any levels, and their opinions as to the head of water amount to but little more than guesses. Accurate surveys should be made, and levels taken, before any safe conclusion can be reached upon this important point. Nothing of the kind was done, and the fact as to what head of water can be created and utilized by the system of dams above mentioned, without injury to the defendant’s mill property, is left in doubt and uncertainty. We therefore think there should be a new trial to determine this question. And we suggest to the learned circuit court that in order to ascertain what head can' be created and utilized at the plaintiffs’ mill without injury to the defendant by flooding or otherwise, that experts or hydraulic engineers be appointed to make such surveys and take levels, so that this fact can be determined with exactitude or reasonable certainty.

By the Court.— The judgment is therefore reversed, and a new trial ordered for that purpose.