Opinion
July Term, 1897.
John Houston Merrill and Edwin E. Tait, for the appellant.
August Becker, for the respondents.
The facts of this case, which have been necessarily stated with considerable detail, are, in the main, such as were found by the learned trial court. None of them has been excepted to by the plaintiff, and they must consequently, for the purposes of this appeal, be regarded as established. Some additional circumstances were made to appear upon the trial which were probably sufficient to justify the plaintiff in invoking the aid of a court of equity, provided he can maintain his contention that the defendants, in cutting and removing the ice from Lime lake, were invading his legal rights, and were, in fact, trespassers.
Proceeding, therefore, to a consideration of the case from a legal point of view, we discover that the plaintiff rests his contention upon the following propositions, viz.:
(1) That he acquired an absolute and unqualified right of ownership in the ice forming in the lake through the purchase, by his predecessors, of the right to flow the lands of the riparian owners; (2) that the agreement of October 29, 1890, was void, because wholly without consideration, and (3) that by accepting and acting under the right or license granted under this agreement, the defendants were estopped from denying the plaintiff's title to the ice.
As introductory to the examination of these propositions it may be profitable to determine what would be the relative interests of these parties in the subject-matter of the action, if the same were in no wise affected by the respective grants under which each claims the exclusive right to the ice.
To accomplish this it seems only necessary to refer to the fact that the defendants are riparian owners while the plaintiff is not, in consequence of which, Lime lake being an inland and non-navigable body of water, the presumption arises that, unless restricted by some reservation in their deed, the defendants' title extends to the center of the lake. ( Smith v. City of Rochester, 92 N.Y. 463; Gouverneur v. The National Ice Co., 134 id. 355; Deuterman v. Gainsborg, 9 App. Div. 151; City of Syracuse v. Stacey, 86 Hun, 441.)
It was not made to appear at the trial, nor do we understand it to be now claimed, that the defendants are in anywise embarrassed by restrictions of the character adverted to, but to repel the presumption existing in their favor, the plaintiff relies mainly, if not entirely, upon the grants which his predecessors in title, Colgrove and Follett, obtained from the riparian owners to flow their lands. These grants were executed by different parties and at different times, but in their language they are nearly identical, and there is no difference whatever in their legal import. In short, they convey "all the right and privilege of flowing by means of a dam erected at or on the outlet of Lime Lake, so much of lot No. ____ * * * as is now flowed by said dam, and to keep the same so flowed as long as the water raised by and drawn from said dam is used for the purpose of propelling machinery."
It is apparent from the language here quoted that the mill owners, in order to propel the machinery of their mill, found it necessary to increase their water power. This could be done only by raising the dam; and the addition of two feet to the height of the dam, of course, raised the water correspondingly in the lake and caused it to overflow the lands of the adjoining owners. It was consequently to provide against this contingency, and to protect the mill owners in the enjoyment of their increased facilities, that grants were obtained from the riparian owners of the right to maintain the dam at its increased height, and to flood the lands of the latter as long as the water raised by and drawn from the dam should be used for the purpose of propelling the machinery of the mill.
But we fail to see wherein these grants diminished or in any manner affected the rights of the riparian owners in the waters of the lake, or in the ice which formed upon its surface. For while, strictly speaking, it cannot be said that they ever had any property in the waters themselves ( Matter of Thompson, 85 Hun, 438), their title, nevertheless, covered the bed of the lake, and they consequently had the undoubted right to use the waters thereof and to cut and remove the ice formed thereon, provided this right was exercised reasonably and in such a manner as not to materially diminish the volume of water in the lake to the injury of lower proprietors. ( Marshall v. Peters, 12 How. Pr. 218; Dodge v. Berry, 26 Hun, 246; De Baun v. Bean, 29 id. 236; Cummings v. Barrett, 10 Cush. 186; Bigelow v. Shaw, 65 Mich. 344.)
It follows, of course, that if the riparian owners conveyed no other or greater right than the mere privilege of flowing their lands, the mill owner obtained no better proprietary interest in the waters of the lake than he enjoyed previous to the execution of the grant, which, as we have seen, was limited to their use for mill purposes, subject to a prior, reasonable use thereof by the riparian owners.
The record before us seems to make it quite obvious, however, that the defendants, while carrying on the ice business as a firm, took such quantities of ice from the lake as to give rise to the complaint that their use of its waters was unreasonable, in consequence of which an action was brought against them by Euchner, who was then the owner of the mill lot, and it was to compromise and settle this action that the agreement of October 29, 1890, was entered into.
We are thus brought to a consideration of the effect of this instrument upon the rights of the respective parties; and in this connection it is to be observed that, as the plaintiff purchased his property in subjection to whatever rights his grantor had parted with, he occupies precisely the same attitude towards these defendants as would Euchner, if he were still the owner of the property.
An examination of the agreement referred to will disclose the fact that it was evidently designed to accomplish the following objects: (1) To convey to the defendants a small strip of land therein mentioned; (2) to grant to them the unrestricted right, privilege and permission to cut and remove ice from the lake; (3) to release them from all damages which had accrued or which might thereafter be sustained by reason of any interference by them with the water flowing on to the mill lot, and (4) to reserve to the grantors of these rights and privileges compensation therefor upon the basis of one-half cent for each ton of ice cut and removed.
This agreement appears to have been duly executed. Its language is neither vague nor ambiguous, and we see no reason to doubt its efficiency for the purpose for which it was designed, namely: To confer upon the defendants the right, which they did not theretofore possess, of cutting and removing ice from Lime lake in unlimited quantities, even if in so doing they injured or absolutely destroyed their grantors' mill privilege. Nor is the instrument to be regarded as a mere license. On the contrary, it is in effect what we have repeatedly termed it, a grant, and the mill owner's rights in the waters of the lake, whatever they may have been, were distinct and substantive subjects of a grant. (Goold on Waters, § 304; Hall v. Sterling I. R. Co., 148 N.Y. 432.)
It is contended, however, that the clause in this agreement which provides that nothing therein contained shall be deemed to grant the exclusive right to the defendants to cut and remove ice from the lake must be regarded as a limitation upon the estate granted, and an elaborate argument is entered upon to sustain this contention upon the one hand, while upon the other it is insisted with no little ingenuity and a quite liberal citation of authority that the clause referred to should be treated as the habendum, and that, consequently, within well-settled rules of construction, it must yield to the granting clause.
In the view which we take of the case this question, however interesting its examination might prove, is really of little or no importance. For, as we have seen, the plaintiff has no interest in the corpus of the ice, and as to these defendants, he no longer has any interest in the quantity taken by them. It, therefore, does not concern him whether the defendants claim an exclusive or an unrestricted right to the ice. It rather concerns the other riparian owners, who, so far as appears, do not dispute the defendants' claim, whatever it may be.
But even if we entertain any doubt as to the correctness of the views we have expressed respecting the relative rights of the parties under this instrument, that doubt would be resolved by the fact that the instrument has received a practical construction at the hands of the parties themselves. For it is not denied that, after obtaining this grant, the defendants proceeded to cut and remove ice without the slightest restriction as to quantity; and this, it seems, was done with the apparent acquiescence of their grantor Euchner.
This certainly shows the understanding which the parties entertained respecting the terms of the agreement and it should relieve that instrument of whatever uncertainty it may possess. ( Dodge v. Zimmer, 110 N.Y. 43; Woolsey v. Funke, 121 id. 87; McClanathan v. Friedel, 85 Hun, 175.)
With the principal question in the case thus disposed of, it becomes necessary to determine what virtue there is in the plaintiff's remaining propositions.
We must confess our inability to perceive upon what theory it is urged that the agreement which we have had under consideration is void for want of consideration, for it is conceded that it was under seal; and this of itself was, at common law, conclusive evidence of a sufficient consideration, although under our present system it simply raises a presumption of that fact. ( Torry v. Black, 58 N.Y. 190; Code Civ. Proc. § 840.) But in addition to the presumption thus created, the instrument, upon its face, bears unmistakable evidence of mutuality, and it expressly recites that, in consideration of the rights and privileges thereby granted to the defendants, they will pay to their grantor Euchner, his heirs, executors and assigns, one-half cent for each ton of ice thereafter taken by them from the lake. This covenant it appears that the defendants fulfilled, for Euchner testifies that they paid him from $100 to $135 per season under this contract.
It would seem, therefore, that not only was there a consideration for the grant, but that the same was adequate and satisfactory to the plaintiff's grantor.
Moreover the instrument was executed in settlement of a disputed claim, and this fact alone would furnish sufficient evidence of a consideration to uphold it. ( Seaman v. Seaman, 12 Wend. 381; Feeter v. Weber, 78 N.Y. 334; Rector, etc., v. Teed, 120 id. 583.)
The plaintiff's last contention is that the execution and acceptance of the agreement of October 29, 1890, was a recognition by the defendants of Euchner's right to the ice, which estops them from now disputing the plaintiff's claim of title thereto. We do not so regard it. It is true that by this instrument the grantor released to the defendants whatever right, title or interest he had in and to the ice in the lake, but, manifestly, its main purpose was to furnish him adequate compensation for the damage which he had already sustained, or which might thereafter result from diminishing the amount of water to which he was entitled for milling purposes. This right, as we have attempted to show, was one which the riparian owners could not interfere with by an unreasonable use of the water in the lake; and by entering into the agreement and thus compromising their differences, the defendants, in our view of the matter, simply admitted that, by taking the quantities of ice from the lake which they did, they were making such an unreasonable use or appropriation of its waters as rendered it desirable for them to buy their peace.
Upon a careful review of the entire case, we are persuaded that a proper disposition was made of it at the trial, and that the judgment appealed from should, therefore, be affirmed.
All concurred, except FOLLETT, J., not sitting.
Judgment affirmed, with costs.