OPINION
Elliott, J.
The
appellants set forth in their complaint a note and mortgage,
and ask a decree of foreclosure. The appellees pleaded facts
constituting an equitable estoppel, and the finding of the
trial court fully sustains the allegations of the answer
setting up that defence. We think it unnecessary to give a
synopsis of the answers, for the facts exhibited in the
special finding are substantially the same as those stated in
the answer, and in deciding the questions presented upon the
special finding we effectually dispose of all the questions
in the record.
The
facts, as they appear in the special finding, are
substantially these: On the 22d day of July, 1858, Vincent
Voisinett was the owner of the real estate described in the
plaintiffs' complaint, and of the mill
property and privileges owned by the defendants. On that day
Voisinett conveyed to Allen, Cummins and Brown, and in the
deed of conveyance was written this stipulation: "Said
grantors also convey water to the amount of six hundred
inches, to be furnished from the head of the race of the
flouring-mill of said Voisinett, said supply of water to be
constant and perpetual, the said grantees hereby agreeing to
assist in keeping up the dam in the proportion of the amount
of water used by them, and to construct and keep in order
their own race." The property and rights of Allen,
Cummins and Brown passed to Martin G. Sage and Norman Sage,
by whom the property and rights were conveyed to a
corporation named the Ball & Sage Wagon Company. On the
13th day of March, 1873, the Ball & Sage Wagon Company
executed to Sarah Rawlings the note and mortgage described in
the complaint, and the mortgage was recorded on the 15th day
of May of that year. On the 20th day of June, 1873, Voisinett
agreed to convey to Clark Lane the mill property and the
residue of the water power, and on the 28th day of April,
1874, conveyed the property to him pursuant to that
agreement, and Jacob C. Lane subsequently acquired an
interest in the property. At that time the mill dam was out
of repair and insecure, and for the purpose of improving the
water-power and rebuilding the dam, Lane and the Ball &
Sage Wagon Company entered into the following contract:
"Whereas
on or about the 22d day of July, 1868, Vincent Voisinett and
wife did execute and deliver to H. H. Allen, S. M. Cummins
and Brown a conveyance conveying a portion of the water-power
of Elkhart river, situate on the
east bank of said river and south of Jackson street, in the
town of Elkhart, Indiana. The said conveyance being in the
following words, to wit: 'Said grantors also convey water
to the amount of six hundred inches, to be furnished from the
head race of the flouring-mill of the said Voisinett;'
said supply of water to be constant and
perpetual. The said grantees hereby agreeing to assist in
keeping up the dam in the proportion to the amount of water
used by them, and to construct and keep in order their own
race. The said conveyance aforenamed at a subsequent date was
purchased and is now owned by the Ball & Sage Wagon
Company of said town of Elkhart. And, whereas, on the 19th
day of August, 1873, said Voisinett and wife conveyed to
Clark Lane, of Hamilton, Ohio, several tracts, parcels and
lots of land, together with all the residue of their title
and interest in and to said water-power first above named,
saving and excepting therefrom thirty-six horse-power. And,
whereas, several parties now owning said water-power intended
to commence the improvement of the same at an early day, and
to pay for said improvements in their due and proper
proportions, also to stand jointly in the same proportion all
costs and damages that may be sustained by others than
themselves by reason of the making of said improvements. And,
whereas, it is therefore necessary to define distinctly and
definitely what shall forever be construed and admitted to be
the true intent and meaning of six hundred inches of water as
before named in said conveyance, and to fix the per cent. or
proportion that the said Lane and the said Ball & Sage
Wagon Company respectively shall pay towards the construction
of said improvements, and also what they for themselves,
their heirs and assignees agree shall forever after be
binding upon them. Thereupon said Ball & Sage Wagon
Company do now agree to the following, to wit:
First. It is agreed that the said Ball & Sage
Wagon Company are to have the right to, and that they shall
on demand of said Lane, his heirs or assignees, place a water
gauge or aperture of their own construction, not to exceed
ten (10) inches by sixty (60) inches capacity of discharge
into and above the bottom of their flume or forebay as at
present constructed, and at the south end thereof where the
same now connects with the main head-race. Said aperture to
be forever thereafter kept in good repair and
of no greater capacity of discharge than ten by sixty inches
as aforedescribed, but said aperture or gauge may be so
changed at any time to such shape or form as said Ball &
Sage Wagon Company choose to adopt, and with privilege to
place the same at any point above the present bottom of their
flume as before described. Second. Said Lane and
said Ball & Sage Wagon Company agree to build a good and
suitable dam for said water-power across the Elkhart river at
a point near the site of the present old dam, and also to
fill the channel with a gravel and earth embankment of
suitable heighth and strength to effectually fulfil the
agreements and to take the place of what has generally been
known as 'the channel dam' first named to be built to
the full height of the old...
