Bliss v. Kennedy

• Decision Date: 31 January 1867
• Parties: AARON BLISS et al.v.JAMES KENNEDY et al.
• Court: Illinois Supreme Court

43 Ill. 67

1867 WL 4984 (Ill.)

AARON BLISS et al.

v.JAMES KENNEDY et al.

Supreme Court of Illinois.

January Term, 1867.

WRIT OF ERROR to the Circuit Court of Coles county; the Hon. O. L. DAVIS, Judge, presiding.

This was a suit in chancery, commenced in the Coles county Circuit Court, by Aaron Bliss and Thomas Lytle against the defendants in error.

The complainants by their bill allege in substance, that they are the owners in fee of a lot of ground in Charleston, conveyed by deeds with the usual covenants, by James Kennedy, one of the defendants, to complainants, on which lot James Kennedy had previously, to wit, in 1855, erected a woollen factory, with capacity to do a large business in that line, and that the defendants, five or six years afterward, erected their factory on the same stream, on their own lot, and about one hundred yards above complainants' factory. Complainants charge that defendants have used the water of the stream to their detriment, and have occasionally let their dye-slops escape and get into the stream, and thence into the pool of complainants; and further, that defendants were about to proceed to dig a deep drain from their factory through the land of complainants, against their will, for the purpose of carrying off their slops.

The bill prays for an injunction restraining the defendants from interfering with the alleged rights of the complainants.

The defendants' answer admits the erection and ownership of the two factories, and the doing of the amount of custom and other work claimed in the bill, but denies the claim of complainants of any superior or exclusive right to the use of the water flowing in the ravine or stream on which said factories are situated, either by virtue of the deeds from James Kennedy, or priority of occupancy; defendants deny all intention to injure complainants by waste of dye-stuffs, or otherwise; and deny any intention or desire to dig a ditch through the lot of complainants, aforesaid, without their consent.

To which the complainants filed a general replication.

The case was heard at the March Term, 1866, of the Circuit Court of Coles county. Upon the hearing the injunction prayed for was refused, and the bill dismissed.

The material facts appear in the opinion.

The errors relied upon are, the refusing of the injunction, and dismissing the bill, by the court below.

Messrs. COLER & SMITH, and WILEY & PARKER, for the plaintiffs in error.

Messrs. JOHN SCHOLFIELD and O. B. FICKLIN, for the defendants in error. Mr. JUSTICE BREESE delivered the opinion of the Court:

The claim made by the complainants, plaintiffs in error here, is reduced to this simple question, have the complainants, by reason of priority in the use of this water, or from any other cause, the exclusive right to the use of the water, which these springs and rivulets supply?

The plaintiffs in error insist, as against these defendants, they have such right, derived in two ways; first, by the deeds of Kennedy to them, and second, on the evidence in the record. Upon the first point, it is only necessary to recur to those deeds, with a short preliminary statement of some facts.

James Kennedy, one of the defendants in error, had, in 1855, erected a woollen factory on a certain piece of ground in the town of Charleston, in Coles county, and operated it until 1857, when Thomas Lytle, one of the plaintiffs in error, purchased of him an undivided half interest in the factory, and business and lot of ground, together with the water privilege thereto belonging, and all appurtenances whatsoever. Kennedy and Lytle carried on the factory until 1859, when they sold an undivided third of the ground, factory and business, to Joseph Peyton, and the same was carried on by Kennedy, Lytle & Peyton until March, 1860, at which time Aaron Bliss, the other plaintiff in error, bought the interests of both Kennedy and Peyton, taking a general warranty deed from them for an undivided two-thirds of the same. The premises are described in this deed as “one undivided two-thirds of the building and machinery, together with two-thirds of the following parcel or lot of ground (describing it by courses and distances) together with all the hereditaments and appurtenances thereto belonging, or in any wise appertaining.”

Now the claim of plaintiffs in error is, that by this deed Kennedy virtually covenanted, that his grantees should have the use of the water as it then came to the factory, the flow of the water from the springs and branch on which the factory was erected being appurtenant to the land granted.

At the time of the execution of this deed by Kennedy, and at the time he executed the deed to Lytle, it is not pretended Kennedy had any right, title or claim to any land save that on which the factory was erected. By his deed then, he cannot be held to have sold and conveyed any thing but the land and factory specified in it, and the appurtenances to that land and factory then belonging.

Because a small stream, fed by springs, flowed from a distant source, through this land, it cannot, with any plausibility, be contended that the water or stream outside of the boundary of the land he then owned and conveyed, included those other portions of the stream flowing through other lands he did not own, as appurtenant to the land he conveyed, and yet such is the claim of the plaintiffs in error, a claim having no foundation in reason, law or justice. All that belonged to the tract conveyed, and over which Kennedy then had dominion, passed by his deed under the term “appurtenances,” and nothing more. The principal thing conveyed was the factory and the ground on which it stood, and all that pertained to either, which Kennedy owned, passed by his deed.

This proposition is so reasonable, that the mere statement of it should be sufficient, but there is authority on the point. It was held in Rockly v. Sprague, 17 Maine, 281, that the grant of a mill carried with it the use of the head of water necessary to its enjoyment, with all incidents and appurtenances, but only so far as the right to convey to this extent existed in the grantors. And the same doctrine is recognized by this court, in Wilcoxon v. McGhee, 12 Ill. 381, in which it was held, where a mill and its appurtenances were conveyed, the mill being the subject matter of the grant, the right to continue to overflow the lands of the grantor continued to the same extent as when the grant was made. And the same was held in Hadden v. Shoutz, 15 Id. 581. Courts always construe grants by considering the condition of things at the time the grant was made. Kennedy, when he conveyed the factory and land, with its appurtenances, to complainants, owning nothing outside of the boundaries of the land conveyed, above or below the factory, could convey nothing, and, therefore, no part of the stream above the factory could pass as appurtenant to it. Nor are there any covenants in Kennedy's deeds inhibiting him from the future acquisition of rights in this stream of water, and if there were, they could not affect his co-defendants, -- they would not be bound by them.

The claim of complainants based upon Kennedy's deeds falls to the ground.

Is there, then, any reasonable ground of complaint on the part of complainants shown by the evidence as growing out of the subsequent acquisition by these defendants of the land and stream above this factory, and thereon erecting a rival factory?

Complainants charge in their bill of complaint, that the erection of this factory by these...