City of Elkhart v. Christiana Hydraulics

• Decision Date: 28 February 1945
• Docket Number: 28074.
• Citation: 59 N.E.2d 353,223 Ind. 242
• Parties: CITY OF ELKHART et al. v. CHRISTIANA HYDRAULICS, Inc.
• Court: Indiana Supreme Court

59 N.E.2d 353

223 Ind. 242

CITY OF ELKHART et al. v. CHRISTIANA HYDRAULICS, Inc.

No. 28074.

Supreme Court of Indiana

February 28, 1945

Appeal from Elkhart Circuit Court; Aldo J. Simpson, Judge.

Harman & Harman, C. C. Raymer, and Austin C. Gildea, all of Elkhart, for appellants.

Verne G. Cawley, of Elkhart, for appellee.

YOUNG Judge.

Prior to July 20, 1896, all of the land here involved with other land was owned in a single tract by James R. Beardsley. The land now owned by the City of Elkhart consists of approximately twenty-three (23) acres. The west part of the city's tract is covered by a mill pond and the east part is a natural water preserve. Wells were dug upon this portion of the real estate in which the water accumulates and from these wells it is piped to a pumping station south of Christiana Creek for distribution to the people of Elkhart. The land now owned by the appellee is contiguous to and lies immediately south of the city's land and the mill pond extends down on appellee's land. It also owns a narrow strip of land, formerly used for a mill race running south and east from the south end of the mill pond to the St. Joseph River.

Christiana Creek finds its source in a number of lakes north of the Indiana-Michigan line and flows south a distance of about eight (8) miles through the City of Elkhart and then eastwardly into the St. Joseph River. Because of its origin in said lakes the creek affords a constant supply of water throughout the year. This creek flows south across the eastern part of the land owned by the appellant city to the line which divides the city's land from the appellee's land. There the creek turns and meanders eastwardly back and forth across the dividing line, flowing part of the time upon appellant's land and part of the time on appellee's land.

For over a hundred years the creek has been dammed at or about the point where it turns eastwardly near the dividing line between the two tracts here involved. This dam has created the mill pond referred to.

On July 20, 1896, Mr. Beardsley conveyed to the Elkhart Water Company the real estate now owned by the city and retained the real estate now owned by appellee. The deed to the water company contained certain exceptions and reservations expressed in the following language:

'excepting and reserving to the grantor his heirs and assigns, the right to keep and maintain the Mill pond thereon situate, within its present limits at high water; with the right and privilege of ingress and egress for himself, his heirs or assigns, and agents at all times for the purpose of maintaining and repairing dam, bank and water ways appurtenant to and situate on said pond, * * *.'

'It is further agreed that the grantor his heirs and his assigns will have the right to allow the water in said pond to flow into the Christiana Creek now situate on said land.'

At the time of this conveyance a mill race tapped the mill pond at its southernmost point on the land now owned by appellee and ran to the St. Joseph River and was used to make power for a grist mill and a paper mill.

Later the water company conveyed its real estate to the City of Elkhart subject to the same exceptions and reservations and Mr. Beardsley continued to own the real estate south of the city's property until his death in 1902. In 1903 his heirs conveyed to Herbert E. Bucklen the real estate now owned by appellee, including the mill race and including the rights reserved in his deed to the water company above referred to. These rights were described in the deed to Mr Bucklen in the following language:

'Together with all the water rights, riparian rights, raceways, claims easements, appurtenances and privileges belonging to said described land, and the water power appurtenant thereto. The grantors also sell and convey all of their rights, titles, claims, privileges, easements and appurtenances belonging or appertaining to the water power and privileges derived from the Christiana Creek in the City of Elkhart, Indiana, the dams, gates and raceways belonging to said water power, and the water privileges arising from the use of the water of said creek. It being the intention and purpose of this conveyance to sell and convey to the grantee all of the rights, privileges, easements and appurtenances belonging and connected in any manner with, the said water power wherever located, and now owned or enjoyed by them or which were enjoyed by their ancestors, and not heretofore conveyed, including all overflow lands, and rights to overflow lands, and all reservations and exceptions made by them or their ancestors for the use, conduct and continuation of said water power, and contained in any conveyance heretofore executed by them or any of them or their ancestors or grantors.'

At the time of this conveyance both the grist mill and the paper mill had discontinued operations and none of the water power developed by the dam and mill pond was being utilized.

In 1916 the dam washed out. At that time Herbert E. Bucklen, who continued to be the owner of the real estate now owned by appellee and the excepted and reserved rights, described in the 1896 deed to the water company, entered into a lease with the water company by which he leased to the water company for twenty years, at an annual rental of $600 per year, certain real estate, the race way and Christiana Creek water power, described as follows:

'All the rights and privileges that the lessor now has or owns in and to the mill pond located in, connected to and forming a portion of Christiana Creek, including all rights, privileges, easements and prescriptions that the lessor now owns or possesses, to use and appropriate the water flowing in said creek for power or other purposes, together with all the flowage or overflowage rights and privileges connected with, or appurtenant to, said mill pond and water power which are now vested in the lessor by any deed, judgment, record, prescription, easement or otherwise;'

By said lease it was further agreed that the water company should rebuild the dam at its own cost, except that Mr. Bucklen agreed to contribute $1,000 to the cost of such restoration. By the lease it was also provided that Mr. Bucklen, at his own expense, should install a sluiceway 12 feet wide at the north end of the dam.

The lessee was, by the terms of said lease, given the further right to construct and maintain on the demised real estate any structure, machinery or appliances that it might deem proper in order to utilize said water power, and also was given the right and privilege to erect and maintain poles along the banks of said mill race for the purpose of transmitting power. The water company caused a new, reinforced concrete dam to be rebuilt at the same location and of the same height as the old dam and Mr. Bucklen caused to be built into said dam two six-foot sluiceways at the north end instead of one twelve (12) foot sluiceway as provided for in the lease. The dam is located at the southeast corner of the mill pond.

In connection with the construction of the new dam, Mr. Bucklen also replaced the east bank of the mill pond, which had been made of earth, with a reinforced concrete retaining wall built deep enough to prevent water from flowing under it from the mill pond into the water preserve of the water company lying to the east.

It also appears from the evidence that in connection with the rebuilding of the dam and the retaining wall, Mr. Bucklen installed new headgates, which could be lowered or raised, at the point where the mill race tapped the pond and that he cleaned out the mill race and constructed a new flume and installed a concrete sluiceway with removable sluice boards near the junction of the race way with the St. Joseph River.

At the time this suit was instituted there was a disagreement between the parties as to the location of the dividing line between their parcels of land but at the trial the witnesses for both parties agreed that the south end of the dam is approximately forty-five (45) feet north of the dividing line between the city's property and appellee's property.

The water company went into possession of the rights it acquired under the lease and continued to hold and use same and pay rent until it sold out to the city in 1925 and the city continued in possession and continued to use same and pay rent until the termination of the lease in 1936. In the meantime, Mr. Bucklen had died and his rights under the lease and to the real estate now owned by appellee and to the reserved rights in the real estate now owned by the city passed to trustees and since have been conveyed to the appellee herein.

While the lease above referred to was in full force and effect a hole was made by the water company or the city in the concrete retaining wall on the east side of the mill pond and a 12-inch pipe was inserted so that the water flowed continuously from the mill pond into and upon the water preserve lying to the east of the mill pond.

After the termination of the lease above referred to, appellee demanded in writing, served upon the City of Elkhart, that the pipe be removed and the opening in the wall be closed. The demand was not complied with and thereafter appellee caused the opening to be closed with concrete but appellant removed the concrete and the water has since continued to flow through the opening.

There was evidence that 4,375,000 gallons of water flow through this pipe from the mill pond to the city water preserve each twenty-four hours as compared with an average of 4,500,000 gallons of water pumped into the city's distribution system each twenty-four hours.

Water pipes were run from wells upon the water preserve across the creek near the east line of the city's...