Corbin v. Dale

• Decision Date: 31 August 1874
• Parties: OVID H. CORBIN and ANDERSON B. EVERETT, Plaintiffs in Error, v. TIMOTHY R. DALE and JAMES H. DALE, Defendants in Error.
• Court: Missouri Supreme Court

57 Mo. 297

OVID H. CORBIN and ANDERSON B. EVERETT, Plaintiffs in Error,

v.TIMOTHY R. DALE and JAMES H. DALE, Defendants in Error.

Supreme Court of Missouri.

August Term, 1874.

Error to Clay Circuit Court.

Sam'l Hardwick and Henry Smith, for Plaintiffs in Error.

D. C. Allen, for Defendants in Error.

NAPTON, Judge, delivered the opinion of the court.

This action was brought in 1872, to recover damages against the defendants for using the water of a spring, alleged to belong to the plaintiffs, for manufacturing purposes.

The petition avers, that on the 9th of March, 1866, the plaintiffs were owners in fee of a certain lot of ground in the town or city of Liberty, which included what is called the “Big Spring;” that they owned the quarter acre of ground and the spring situated on it, by regular chain of title, excepting that the citizens of Liberty had acquired from the original proprietors the right to procure and use drinking water from said spring; that on said 9th of March, defendants wrongfully, and with force, and against the consent of plaintiffs, entered upon said land and commenced using water from said spring for manufacturing purposes, until the 30th of March, 1867. The petition then alleged damages to the amount of $111.11, and asks a judgment for the same.

The answer contains a general denial of the allegations of the petition relating to ownership, and then sets up specially, that on the first of April, 1822, Angus L. Langham and Duff Green were owners of the quarter acre and the spring thereon, and by their deed dated on that day, granted the said quarter acre and spring thereon to the citizens of the town (now city) of Liberty, in fee simple; and that during the time mentioned in said petition, the citizens of Liberty were, and still are, the owners in fee of said land and the spring thereon; and during that time the defendants lawfully entered upon said quarter acre and used the water of said spring for manufacturing purposes, at the mills in the original bounds of the town of Liberty, known as the Valley Mills; and that in doing so they did not interfere with plaintiff's use of the same, nor of that of the citizens of Liberty.

There was a replication filed, denying such a deed to the citizens of Liberty as this defendants set up.

On the trial, this paper referred to in the pleadings was read; and as the case turns chiefly on its construction it is here inserted:

“Know all men by these presents, that I, Angus Lewis Langham, of the county of St. Louis and State of Missouri, and Duff Green, of the county of Chariton and State aforesaid, do bind ourselves, our heirs and assigns firmly in the sum of one thousand dollars, to the commissioners of Clay county, that we will give the citizens of the town of Liberty free privilege of drinking water out of a spring that is on a New Madrid location, which is located on the south-east quarter of section seven, in range thirty-one, and township fifty-one, and on part of the north-west quarter of section eight in the same range and township. It is expressly understood that there is one quarter of an acre, together, including the big spring that is on the south-east quarter of section seven in the above mentioned range and township, to be reserved by the proprietors free from sale, for the use and benefit of the citizens of said town of Liberty--but it is also understood that the commissioners of said county are not to prevent the proprietors of ( sic.) making any use of said spring that they may want, so as it does not prevent the citizens of said town from using water. As witness we hereunto set our hands and seals this 1st day of April, 1822.

(

)

MARTIN PALMER,

(

SEAL

)

Agent in fact for

(

)

ANGUS LEWIS LANGHAM and DUFF GREEN.

Attest, THOMAS OFFICER,

SHUBACK ALLEN.

The plaintiffs then offered a chain of title from Green to them, for the quarter acre on which the spring was located, and other land adjoining. To all these deeds the same specific objections were made, and the court excluded them. These objections were, in substance, that they contradicted the grant from Langham and Green, or rather, were inconsistent with that paper; that Langham and Green could convey no title to any one of said quarter acre, after their deed to the commissioners of Clay county; that they could have no assignees in regard to said land and spring; that they became at all events trustees for the inhabitants of the town of Liberty, subject to the uses declared in that paper; and finally, that the water of a spring was running water, and that no property could be acquired in running water, and that no action could be maintained for using it. These objections were sustained by the court.

The plaintiffs then offered to show that they had occupied said property, actually and adversely, for more than ten years before the institution of this suit; but this was excluded by the court, on the ground that the petition set up no title by occupancy for a period sufficient to give them a title under the statute of limitations.

The plaintiffs then proposed to prove the value of the water used, and the amount of damage resulting from such use, but as the court held that they had no case, this evidence was of course excluded. And thereupon, the court gave judgment for defendants.

There were the usual motions for new trial and in arrest; and the usual exceptions taken, without which we could not consider the case.

It is obvious that the merits of the case depend on the construction of the paper signed by the agent of Langham and Green. There is no plausibility in the construction claimed, that it was a conveyance in fee simple to the commissioners of the quarter acre and the spring. It was at most a dedication of the spring to the citizens of Liberty, for drinking purposes. Probably in 1822, when this privilege was conceded, no doubt with a view to effect a sale of the New Madrid claim, which the grantors owned,...