Brookville & Metamora Hydraulic Co. v. Butler

• Citation: 91 Ind. 134
• Decision Date: 31 October 1883
• Docket Number: 9141
• Parties: The Brookville and Metamora Hydraulic Company v. Butler et al
• Court: Supreme Court of Indiana

91 Ind. 134

The Brookville and Metamora Hydraulic Company v. Butler et al

No. 9141

Supreme Court of Indiana

October 31, 1883

From the Decatur Circuit Court.

Judgment affirmed.

J. D Miller, F. E. Gavin, H. Berry, F. Berry, B. F. Claypool, L T. Michener and T. B. Adams, for appellant.

J. S Butler, for appellees.

OPINION

Elliott, J.

Under the general internal improvement act of 1836, the State, in 1837, for the purposes of constructing a canal, seized land then owned by the heirs of Charles Collett. During that year, and prior to 1842, work was done upon the canal by the State; at the session of the Legislature of the year 1842 a corporation was created named the White Water Valley Canal Company, and all the right and title of the State to the land seized was vested in that corporation; the canal was afterwards completed and was operated by the grantee of the State until the year 1865; in December of that year the canal company conveyed its estate in the canal and appurtenances, reserving, however, all water power and all water rights owned by itself or its lessees; the grantee of the canal company leased to the appellant all the unoccupied water on that part of the canal which is upon the land once owned by the Collett heirs; on that land there was a low piece of ground through which the canal passed; upon this low piece, and immediately adjoining the bank of the canal, is a large pond formed by the water thrown from the channel of the canal; on this pond ice formed in the winter of 1878 and 1879, and was cut and appropriated by the appellees, who were the defendants below.

It is within the power of the Legislature to authorize the seizure of the fee, when that estate is required for the public purpose. When the fee is taken, the owner must be awarded, as compensation, the value of that estate. Our cases declare that the act of 1836 authorized the seizure of the fee, and that this was the estate taken by the State and transmitted to the grantees. City of Logansport v. Shirk, 88 Ind. 563; Cromie v. Board, etc., 71 Ind. 208; Nelson v. Fleming, 56 Ind. 310; Water Works Co. v. Burkhart, 41 Ind. 364. It is not without reluctance that we yield to the rule declared in these cases, but we feel that it has become a rule of property which we should not change.

It is not necessary that one claiming an estate in land by virtue of an appropriation made by the State, under the right of eminent domain, should affirmatively show that compensation has been paid, where it appears that the land-owner filed no claim within the time limited by law. If a claim is not filed within the time limited, it is regarded as having been waived. Nelson v. Fleming, supra; Cooley Const. Lim. (5th ed.), top p. 695.

The State had a right to take and transmit a fee upon due compensation, and as no claim was filed within the time limited, and possession has been held by the State and her grantees for a period of more than forty years, we must conclude that a fee to the canal did vest in the appellant as the grantee of the State.

The title which the appellant acquired was to the canal and its appurtenances. Sheets v. Selden, 2 Wal. 177. If the land on which the ice formed can be deemed an appurtenance, then the State acquired and transmitted it to her grantee. But land can never be appurtenant to land. This old rule, old as the law itself, forbids the conclusion that the land passed as an appurtenance.

The right to flow lands conveys no right to the land itself; it vests a mere easement in the possessor. The right which the canal company had in the land adjoining the channel of the canal was an easement, and nothing more. The pond which formed is not shown to have been a reservoir or basin of the canal, nor to have constituted any part of the channel. All that can be inferred from the use of the low ground by the appellant and its grantors is that there existed a right to overflow it. A prescriptive right can never be broader than the claim evidenced by user. Phear Rights of Water, 90.

The appellant owns an easement vesting in it a right to do whatever the owner of an easement to overflow another's land may rightfully do; the owners of the fee possess the right to do all acts which a land-owner may lawfully do, not inconsistent with, or injurious to, the easement. The former as owner of the dominant estate has all the rights that such an estate confers; the latter all the rights of an owner of land burdened with an easement.

We come to the decisive question: Is the owner of an easement to flow another's land entitled to the ice which forms on the water covering the land? There is some diversity of opinion upon this question, but our decisions declare that the ice belongs to the owner of the servient estate. In State v. Pottmeyer, 33 Ind. 402 (5 Am. R 224), the question was examined thoroughly, and it was held that the land-owner might cut the ice, provided no injury was done to the rights of the owner of the dominant estate; and this was the decision in Edgerton v. Huff, 26 Ind. 35. This last case has, it is true, been overruled upon one point, but not upon the point to which it is here cited. Again, in Julien v. Woodsmall, 82 Ind. 568, this question came before the court, and it was held that the right to overflow the land of another for mill purposes did not confer the right to cut the ice formed on the pond. The doctrine of these cases is consistent with long established principles, and is supported by analogous cases. The owner of a servient estate has a right to all the profits which may arise from the soil, and may make such a use of the soil as is not inconsistent with the easement. In the old case of Goodtitle v. Alker, 1 Burr 133, it is said that "The owner of the soil has a right to all above and under ground, except only the right of passage, for the king and his people." This general doctrine applies to a private way. Gates may be erected across it, wells may be dug on it, water ways may be constructed under it, sea weed may be gathered off of it, and herbage may be cropped from it. Bean v. Coleman, 44 N.H. 539; O'Linda v. Lothrop, 21 Pick. 292; Baker v. Frick, 45 Md. 337 (24 Am. R. 506); Emans v. Turnbull, 3 Am. Dec. 427, n. An admirable statement of the rule is that of the court in Maxwell v. McAtee, 9 B. Mon. 20. There, in speaking of the grant of an easement, it was said: "Notwithstanding such a grant, there remains with the grantor the right of full dominion and use of the land, except so far as a limitation of his right is essential to the fair enjoyment of the right of way which he has granted. It is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him because they are not granted. And for the same reason the exercise of any of them can not be complained of by the grantee, who can claim no other limitation upon the rights of the grantor, but such as are expressed in the grant, or necessarily implied in the right of reasonable enjoyment." The right of a mill-owner to pond water on another's land, the right of one owner to use another's land for a sluice way, the right of one owner to use another's land for drainage purposes, are all easements, and nothing more. Baer v. Martin, 8 Blackf. 317; Snowden v. Wilas, 19 Ind. 10. Easements do not take from the owner of the fee the right to make any profitable use he can of his property not inconsistent with the enjoyment of the dominant estate. It is immaterial whether the easement is to flow water over the land or to pond it on the land, in either case, as said...