Horn v. Miller

• Decision Date: 06 October 1890
• Docket Number: 152
• Citation: 136 Pa. 640,20 A. 706
• Parties: G. N. HORN v. S. MILLER ET AL
• Court: Pennsylvania Supreme Court

20 A. 706

136 Pa. 640

G. N. HORN v. S. MILLER ET AL

No. 152

Supreme Court of Pennsylvania

October 6, 1890

Argued May 12, 1890

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF BEDFORD COUNTY.

No. 152 July Term 1889, Sup. Ct.; court below, No. 395 September Term 1887, C.P.

On September 12, 1887, G. Newton Horn brought trespass against Samuel Miller and others, for an alleged wrongful diversion of water from the plaintiff's mill. The defendants pleaded not guilty, and afterwards added a plea averring adverse user.

At the trial on November 29, 1888, the following facts were shown:

The plaintiff was the owner of a tract of land containing 9 acres and 120 perches, near the town of Hyndman, on which was a grist-mill, run by water power obtained from Wills creek. About a mile above the mill, that creek divided into two channels, whether naturally or artificially did not clearly appear. One of those channels passed through the plaintiff's land, and supplied the water for his mill the other passed through a tract owned by the defendant Samuel Miller, and from it the latter obtained water power for a saw-mill.

The plaintiff's land was a part of a tract of thirty-two acres which in 1852 was owned by Enoch Cade, who was then the owner also of other land adjoining. An old saw-mill dilapidated and out of use, stood at or near the site afterwards occupied by the plaintiff's mill. The defendant's lands, at that time, and his lands farther up the stream, upon which it separated into two channels, were owned by John Miller. In the year stated, Cade brought an action against John Miller in the Court of Common Pleas of Bedford county, to recover damages for a diversion of the water of Wills creek. This action was settled by the following compromise agreement, executed by Miller and wife and Cade, with an acknowledgment before a justice of the peace, and recorded on the day after its date:

"Whereas an action on the case, in the Court of Common Pleas of Bedford county, has been instituted to No. 14 of February Term 1852, and is now pending, by and between Enoch Cade and John Miller, both of Londonderry township in said county, regarding the diverting of the waters of Wills creek from their natural channel over and upon the land of said Cade, viz., part of tract warranted in the name of Peter Smith being thirty-two acres and sixty-one perches, situated in said township. . . . Now, therefore, for the purpose of settling all dispute regarding the same: Know all men by these presents that we, the said Miller and Catharine, his wife, and the said Cade, do covenant, agree and bind ourselves as follows: The said Cade, his heirs, executors, administrators or grantees, are to use and enjoy a water right or power for two wheels of any capacity and size he or they may see proper to erect on the land owned by him as above described, or the piece he has lately bought from Michael Carpenter and wife, adjoining the other to the east, without let, hindrance or diversion by channels now existing or by new channels on any land owned by said Miller, or by any hindrance or diversion whatever by the said Miller, his heirs, executors, administrators or grantees. In order to enjoy which, said Cade is not to allow any unnecessary waste of water. Further, at all times when there is a surplus of water in said creek, over and above what may be needed for the full, free and uninterrupted enjoyment of the said two wheels of the said Cade, in manner aforesaid, then the said Miller is to have, use and enjoy water sufficient for the full and free use of the saw-mill now owned by him about sixty or seventy yards southwesterly from the said bridge, or of anything else he may put there not requiring, using or diverting more water than would be necessary for the enjoying the said saw-mill as it now exists. In order to enjoy which, said Miller is not to allow any unnecessary waste of water. The rest of the said water of said creek, over and above the said water said Miller is to use in manner aforesaid, is to be used and enjoyed in any manner deemed proper by said Cade. Said Miller is to have a flood-gate erected at the mouth of his head-race, and shut the same down tightly and securely when the said creek does not furnish more than enough for the said two wheels of the said Cade as aforesaid, and also at all times else when he is not using his own mill, and at all times, is not to interfere in any way with said two wheels as aforesaid, or the rest of said water over and above his own belonging to the said Cade as aforesaid. And for the true performance of all these agreements and covenants, we mutually bind ourselves, our heirs, executors, administrators and grantees by these presents. Witness our hands and seals this eighth day of July, A.D. 1852."

By deed dated April 9, 1864, Cade conveyed the two tracts mentioned in the foregoing agreement to James C. Devore. The deed made no reference to that agreement, or to the rights thereby granted, but contained the usual clause mentioning "ways, waters, water-courses," etc., among the appurtenances of the land conveyed. On November 21, 1868, Devore conveyed the same lands to Edward Manley and Daniel O'Donnell, describing them together, by metes and bounds, as one body containing forty-four acres and five perches. In the deed to Manley and O'Donnell the words "waters, water-courses" were omitted, and there was no reference of any kind to water rights. That part of the thirty-two acres, mentioned above as owned by the plaintiff, was conveyed to him and one Cook by deed from Manley and the heirs of O'Donnell, by a deed dated April 16, 1881, which made no mention of any agreement or rights respecting waters. By subsequent conveyances, the plaintiff became the sole owner of said nine acres.

Cade never erected a mill on his land after the agreement of July 8, 1852, and none was erected until about 1880 or 1881, after the plaintiff and Cook had contracted for the purchase of their land, when the grist-mill above mentioned was constructed, with one turbine wheel.

The testimony tended to show that the defendant had caused the diversion, from the channel through the plaintiff's land and into the channel passing through his own land, of a larger quantity of water than was permitted by the agreement of 1852, and that, in consequence of such diversion, there was not a sufficient flow of water in the former channel to keep the plaintiff's mill running with one wheel. Testimony was given on both sides of the case respecting a claim by the defendant of twenty-one years' adverse user of the water, in the manner complained of, and an allegation by the plaintiff that the defendant Miller had done acts and made declarations estopping him from disputing the plaintiff's title to the rights granted by John Miller to Enoch Cade.

At the close of the testimony, the court, BAER, P.J., charged the jury submitting to them the questions of fact raised by the testimony, and reserving for consideration and ruling "after the verdict, on proper motion filed, on the facts appearing on the face of the deeds and the agreement of July 8, 1852," four points presented by the defendants, as follows:

3. The agreement of July 8, 1852, is merely an executory agreement, with mutual covenants; and, by its terms, Cade was bound to use the water by the erection of a mill, and not having done so, no mill having been ever erected or flood-gates put in, the contract failed and is inoperative and gives no rights to the plaintiff in this suit.

4. There being no express mention of the covenant, agreement or contract, or transfer of Cade's rights under it, if he had any, to J. C. Devore, O'Donnell and Manley and Horn, in the deeds of conveyance, the plaintiff would have no right or title to the water under said agreement.

5. The conveyance of Manley and O'Donnell to Horn does not mention water, water-courses, ways or anything except appurtenances, and under that word no right could pass to the plaintiff, by virtue of that agreement, to water not held and used as an appurtenance at the time of the conveyance of the land.

6. The conveyance of Manley and O'Donnell to Horn for nine acres of the land to which it is claimed the agreement of 1852 is appurtenant, to wit, thirty-two acres, would not operate as a conveyance of the water right to the plaintiff, the same being appurtenant, if at all, to the whole. The privilege was an entire thing and cannot be divided. A conveyance of parts of the land in parts, is an increase of the burden of the easement and destroys it, it not having been made to appear that there is but one mill-seat on the land.

The jury rendered a verdict in favor of the plaintiff for $52. Motions for a new trial, and for judgment for the defendant non obstante veredicto, having been argued, the court, BAER, P.J., filed an opinion which, after reciting the facts, proceeded as follows:

In none of the deeds is there more than a mere description and conveyance of land by metes and bounds with the appurtenances. There has been no conveyance of the premises as a mill or mill-seat, and there is no evidence to show that the easement claimed was or is necessary to the reasonable enjoyment of what was expressly granted. The easement is not a part of the granted premises, and there is no evidence to show that at the time of the grant the easement was apparent, visible, or seemed to be necessary to the complete enjoyment of the premises.

Parties are presumed to contract with reference to the condition of the property as it exists at the time of the contract or conveyance, unless by the contract made to otherwise appear. Whatever belongs to the thing granted as parcel thereof will pass with a grant of the land, and is included under the name appurtenances....