Jordan v. The Indianapolis Water Co.
| Decision Date | 20 June 1902 |
| Docket Number | 19,904 |
| Citation | 64 N.E. 680,159 Ind. 337 |
| Parties | Jordan et al. v. The Indianapolis Water Company |
| Court | Indiana Supreme Court |
Rehearing Denied October 28, 1902.
From Marion Superior Court; Vinson Carter, Judge.
Action by the Indianapolis Water Company against Arthur Jordan and others. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under § 1337j subdivision 2, Burns 1901.
Affirmed.
R. W McBride, C. S. Denny, S. N. Chambers, S. O. Pickens and C. W. Moores, for appellants.
Albert Baker and Edward Daniels, for appellee.
Appellee brought this action to recover four instalments of rent that it claimed were due it for the privilege of tapping a certain artificial waterway, known as the Indiana Central Canal, and drawing water therefrom sufficient to fill and maintain a certain pond during the ice gathering season.
It is averred in the amended complaint that appellee and appellant Cynthia Butsch executed a written contract, on the 1st day of November, 1884, a copy of which is set out in the body of such complaint. The contract recites that the company, "in consideration of the rents, covenants, and agreements hereinafter mentioned," "hath demised and leased, and by these presents doth demise and lease" unto said Cynthia Butsch, for and during the term of five years from the date of the contract, "the right to draw sufficient water from the Indiana Central Canal" to fill and maintain her ice pond, that is particularly described, subject to certain specified conditions. These conditions are: That the water is only to be drawn during certain months of the year, through a trunk, of specified diameter, that she is to cause to be inserted in the bank of the canal; that she is to construct and maintain at the intake a stop-gate, and, except when drawing water for said pond, to keep the same securely closed and fastened; and that she is to keep the canal embankment secure against injury or damage consequent upon the construction of said trunk and gate. It is further provided in said contract that water shall not be drawn from the canal except when there is water therein not needed for certain hydraulic purposes. It is expressly provided by said agreement that the company does not engage or guarantee that there shall be any surplus water, and it is stipulated that it is not to be liable by reason of any non-repair of the canal or break therein, or for other causes of an insufficient supply of water. The contract then recites that said Cynthia Butsch covenants and agrees "to pay for the supply of water to be drawn by" her "from said canal, for the use of said ice pond, the sum of $ 1,000 per annum," payable semiannually, "during the continuance of this lease." It is then provided that if any intervening owner of property requires her to remove the trunk from the head of the mill-race, immediately east of the pond, or if the pond should be declared a nuisance by a court or other competent authority, then she is to be relieved from any further liability for water rent, and the contract is to cease to be operative. In the event that there is no surplus water during the season when she would otherwise be authorized to draw the same, the contract provides that she is not to be held liable for the rent for that season; and, in case she is unable to get water for but a part of the ice gathering season, it is provided that the "rent shall be due and payable for the part of the season in which water is furnished in the proportion the time the water is furnished bears to the whole ice season, and no more." In conclusion, the contract provides that "this lease shall not be transferred or assigned without the consent of the" company "first had and obtained."
The complaint further alleged that on the 21st day of October, 1887, the parties to said agreement entered into a written contract for its extension, upon the same terms, until November 1, 1897. A copy of this agreement is also set out in the amended complaint. It is further alleged that on the 10th day of June, 1891, at the request of appellant Butsch, the appellee indorsed upon said extension agreement its consent to the assignment of her rights to appellants, Jordan and Caylor, with the provision that they were not to assign or sublet. It is then alleged that on the same day she executed to them an assignment of said original contract and extension, a copy of which assignment is set out, and that upon said day "under and by virtue of said assignment said Allen Caylor and Arthur Jordan entered into the possession and enjoyment of all of the rights of said Cynthia Butsch, secured by said original contract and extension agreement, and have since possessed and enjoyed the same," and that they thereafter made the payments accruing under said contract, up to and including that of September, 1894, aggregating $ 3,000; that during all of the ice seasons from November 1, 1894, to April 1, 1895, and from November 1, 1895, to April 1, 1896, appellee had in its canal, at the mouth of the inlet or trunk mentioned in said contract, surplus water, over and above all that was required for said hydraulic uses, and sufficient to fill and keep filled said pond, and that if appellants, Jordan and Caylor, did not take said water during all of said seasons it was only because they did not see fit to open their said stop-gate so that the water might flow into their said pond; that the original contract and said extension agreement have at all times continued in full force, and that appellants, although often requested so to do by appellee, have neglected and refused to pay the instalments of rent due in June and September, 1895, and June and September, 1896, and that they are now indebted to appellee for said four instalments in the sum of $ 2,000. The averments of the amended complaint conclude with a general allegation of performance by appellee.
The appellants, Jordan and Caylor, filed a demurrer to the amended complaint. Their demurrer was overruled, and they filed answer in general denial. The appellant Cynthia Butsch filed a special answer, to which a demurrer was sustained, and she then filed answer by way of general denial. A trial resulted in a verdict and judgment against all of appellants. Further questions, that will be discussed during the course of this opinion, were presented by motions for a new trial.
The first objection to the instrument sued on is that it is lacking in mutuality; that it imposed no obligation upon the company, and that the appellant Butsch had a mere option to draw water from the canal, when there was a sufficient supply; and that therefore there was no obligation to pay for a season during which no water was drawn.
Courts are not justified in straining the provisions of contracts in order to uphold them, but the desire of the law to effectuate, rather than defeat, the agreements of parties is wise and just.
We will first consider the claim that the instrument imposed no obligation upon the company. The document is in form a lease, and in its application to the subject-matter we perceive no reason why it should not so operate. In 1 Platt, Leases, 24, it is said: "As to what property may be demised, it is a general rule that anything corporeal or incorporeal, lying in livery or in grant, may be the subject of a demise." Taylor, Land. and Ten. (8th ed.), § 17. A grant is the method by the common law of transferring the property of incorporeal hereditaments, or such things whereof no livery can be had. 2 Blackstone's Comm., *317. It is doubtless true that there can be no interest in water, wholly disconnected from land, for "water is a movable, wandering thing, and must of necessity continue common by the law of nature." But there are too many cases in the books recognizing the propriety of contracting for water rights as an incident to the proprietorship of land, creating rights appurtenant or in gross, to leave it an open question whether such rights may be the subject of grant.
Except where created by reservation or exception, an easement always lies in grant, actual or presumptive; and, if the interest is of a more permanent character than a mere license, but is nevertheless limited to an interest for a less time than the grantor has in the premises, and a rent is reserved, we take it that the interest is of a leasehold character. Morrill v. Mackman, 24 Mich. 279, 9 Am. Rep. 124.
We think that the right that was here granted was more than a mere license, for the instrument purported to grant the right to appellant Butsch upon a sufficient consideration, as we will hereafter show, not only to receive a flow of water for a term of years, at certain seasons, and when the water was sufficiently high, but it also burdened the real estate of the appellee by a provision that she should have the right to maintain a trunk in the bank of the canal and the right to maintain a stop-gate; and it impliedly gave her such possession as was necessary to enable her to maintain the bank of the canal against injuries consequent upon putting in the trunk and stop-gate, and to prevent third persons from opening said gate. In Smith v. Simons, 1 Root 318, 1 Am. Dec. 48, the facts were that one Flint had executed a writing whereby, for the consideration of # 5, he had granted, to those under whom the defendant in that action claimed, the liberty of flowing certain lands for twelve...
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