Jackson Milling Co. v. Chandos

• Decision Date: 15 June 1892
• Citation: 52 N.W. 759,82 Wis. 437
• Parties: JACKSON MILLING CO. v. CHANDOS ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 437

52 N.W. 759

JACKSON MILLING CO.

v.CHANDOS ET AL.

Supreme Court of Wisconsin.

June 15, 1892.

Appeal from circuit court, Fond du Lac county; N. S. GILSON, Judge.

Action by the Jackson Milling Company for an injunction against Bertrand G. Chandos, administrator, and others. Both parties appeal. The judgment is affirmed upon defendants' appeal, and reversed upon plaintiff's appeal.

The other facts fully appear in the following statement by WINSLOW, J.:

This action was originally brought against Marian L. Bensley to perpetually enjoin her from drawing down the head of water in a certain canal described in the complaint below 11 feet, and to have plaintiff's right to draw 2,000 inches of water under an 11-foot head from such canal adjudged superior to the right of defendant to draw any water therefrom. Marian L. Bensley having died before judgment, the action was revived against her administrator and heirs at law. The water power in controversy is situated on the west bank of the Wisconsin river, at Centralia, in Wood county, and is formed by a series of islands and dams in said river, and an artificial canal more than 80 rods in length, by means of which a part of the water of the river is turned into said canal, and used by both parties for hydraulic purposes of their respective mills. No other parties are interested as owners in such water power, except the plaintiff and the defendant. Plaintiff's mill is a flouring mill, located on the canal above the pulp mill of defendant, which last-named mill is at the lower end or foot of the canal. October 5, 1860, Orestes Garrison was in possession and owned the equity of redemption of the entire water power, and a large amount of land connected therewith, and Ira Harris held the legal title thereto as security for payment of money loaned. At that time the canal in question was partially constructed. On said October 5, 1860, Harris, with the consent of Garrison, executed to one George Weller a warranty deed conveying certain lands adjacent to the canal, also the right to draw from said canal 2,000 inches of water under an 11-foot head, together with a right of way below the mill for the purpose of a tailrace. March 3, 1868, Garrison and wife executed to Weller a quitclaim deed of the same premises and water power. Prior to the execution of the deed of October 5, 1860, Weller had constructed a flouring mill on the premises so deeded to him, and soon after the delivery of said deed he commenced to use water from the canal for the purpose of operating his mill, and continued so to use water until the year 1874, when he sold the premises and power to Alvin S. Trow and Sidney B. Coleman, using the same description as to the water power contained in the deeds from Garrison and Harris to him. The plaintiff, through several mesne conveyances, has succeeded to the rights and interest of Weller in said premises and water power, and is the owner thereof in fee simple. Marian L. Bensley, through several mesne conveyances, succeeded to the right, title, and interest which Garrison and Harris had in the balance of said land, canal, and water power, the first for such conveyances being the deed from Garrison and wife to John Bensley, March 22, 1870, in which deed, and in the succeeding deeds, the land, water power, and privileges conveyed to Weller were expressly excepted in the language of the deed from Harris to Weller. The plaintiff charges that the defendant, by excessive use of water at her pulp mill, has drawn down the head of water at the plaintiff's flouring mill to a head of nine feet, so that the plaintiff was obliged to shut down its mill, and that defendant threatens to continue such excessive use of water. The plaintiff also charges that plaintiff's right to draw 2,000 inches of water under an 11-foot head is paramount and superior to the right of defendant to draw any water, and that the words “2,000 inches of water under an 11-foot head” mean a stream of water having a cross-section area at right angles to the thread of its flow of 2,000 square inches, and moving with the velocitydue to a head of 11 feet; that is, a velocity of 26.60 feet per second.

The answer of defendant denies that this is the correct meaning of the term, and alleges that it means so much water as would be discharged from an ordinary flume through an opening cut in the side thereof of the area of 2,000 inches, while said water is retarded by the actual operation of wheels in motion doing ordinary work, as water wheels running a mill, and which would be, under an 11-foot head, a flow of about 5,000 cubic feet of water per minute or about 104 horse power, theoretical.

As a counterclaim the defendant alleges that the deed from Harris to Weller was executed in fulfillment of a previous contract made between Garrison and Weller in July, 1860. This contract provided for the conveyance to Weller of a certain piece of land, being part of the land afterwards conveyed, and also the right to draw from the race sufficient water, properly applied, to run four run of millstones, or water sufficient to drive the necessary machinery for a gristmill of the capacity of four run of stones; that it was the intention of the parties, in making the deed from Harris to Weller, simply to execute and fulfill this contract, and to give Weller a small piece of land in addition thereto, and that all the persons through whom the plaintiff derives title had notice when they bought said property of the existence and contents of such contract; and that the deed from Harris to Weller was made to fulfill the same, and on no other condition. It is also alleged that the amount of water necessary to fulfill the grant agreed to be made in the contract was about 4,000 cubic feet per minute, and that the description of water by number of inches, under a given head, is very indefinite, uncertain, and not practically useful.

The plaintiff, in its reply, denies all knowledge of the contract set forth in the answer, and alleges that it purchased the premises and water power in good faith and for a full and fair consideration. The plaintiff also pleaded in bar to the counterclaim the decree of the circuit court of the United States for the western district of Wisconsin, rendered in an action in equity wherein Marian L. Bensley was complainant, and Coleman, Jackson, and Witter, plaintiff's grantors, were defendants, which action was brought to reform the deed from Harris to Weller by striking out the words, “2,000 inches of water under an 11-foot head,” and inserting the words, “water sufficient to furnish 80 horse power, theoretical;” which decree denied any relief in the way of reforming said deed, and provided that it should be without prejudice to any subsequent suit for the interpretation of said deed as to the amount of water which the defendant acquired the right to use thereunder.

After a somewhat lengthy trial, the circuit court, among other findings of fact, found that the expression “inches of water,” in the deed from Harris to Weller, at the time of making said deed was not an expression so definite and certain, and of so well-established a meaning, that the same may not be interpreted in view of the actual meaning of the parties; that when Weller completed his flouring mill he built a flume from said canal, and inserted three spouts therein, leading to three wheels, and constructed openings for the insertion of two other spouts of the same size to lead to two other wheels; that the three spouts so inserted, and leading to the wheels, were each 22 inches by 18 inches, gateage measurement; that the mill, canal, and flume remained in the same condition until 1874-75, at which time the same was the property of one Trow and Coleman and one G. J. Jackson. The court further found that the deed from Harris to Weller conveyed a solid vein of water having a cross-section area of 2,000 inches vertical, at right angles with the thread of the current, and that such vein of water was a vein moving with the velocity due to the head as retarded by such machinery in actual operation as was then in use, and that such retardation was 50 per cent., the conclusion of the court being that the true meaning and intent of the grant was a grant of a vein of water 2,000 inches in cross-section area, moving with the velocity due the head as retarded by machinery, and amounting to 11,083 cubic feet of water per minute under a head of 11 feet. The court further found that the defendant had drawn down the water in the canal at times below 11 feet, and intended and threatened to do so in the future, to the injury of plaintiff's rights; that the plaintiff and its grantors, Coleman, Trow, Jackson, and Witter, were each and all purchasers of the premises and water power in good faith, for a full and fair consideration, and without notice of the contract set up in defendant's answer; and that the acts of the defendant in drawing down the head of water below 11 feet were unlawful, and that the plaintiff is entitled to recover damages therefor, to be assessed. The court further found that the plaintiff was entitled to an injunction restraining the defendant from drawing down the water below, so as to interfere with or prevent the use by plaintiff of 11,083 cubic feet of water per minute under an 11-foot head.

Judgment was entered on said finding. Both parties filed numerous exceptions thereto, and both parties appealed from the judgment. Plaintiff appeals from all that part of said judgment which fixes and limits right to draw water from said canal at and to 11,083 cubic feet of water per minute, under an 11-foot head, at its said mill, for hydraulic purposes, and which limits its right to an injunction to that extent only, and from that part thereof denying the plaintiff the right to draw from said canal at its said mill, under 11 feet head, 22,166 cubic feet of water per minute for hydraulic purposes, and denying an injunction...