Mills v. Ford

• Citation: 52 N.W. 764,82 Wis. 416
• Parties: JANESVILLE COTTON MILLS ET AL. v. FORD ET AL.
• Decision Date: 15 June 1892
• Court: Wisconsin Supreme Court

82 Wis. 416

52 N.W. 764

JANESVILLE COTTON MILLS ET AL.

v.FORD ET AL.

Supreme Court of Wisconsin.

June 15, 1892.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.

Action for partition of a water power by the Janesville Cotton Mills and others against Oliver C. Ford and Mary N. Crossett, impleaded with others. From a judgment adverse to their claims, defendants Ford and Crossett appeal. Affirmed.

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

This is an action brought under the provisions of sections 3149-3153, Rev. St., for the partition of the water power created by the dam in Rock river, at Janesville, among the several owners, all of whom are made parties to this action. The complaint was sustained upon demurrer by this court in 55 Wis. 197, 12 N. W. Rep. 377. Since that decision the action has been tried upon the merits, and is now here upon appeal from final judgment. In 1845 A. Hyatt Smith and W. H. H. Bailey commenced the construction of the dam in question, being then the owners of the land on which the dam is situated. Said dam was constructed and maintained under the provisions of an act of the territorial legislature, approved April 6, 1843, (Laws 1843, p. 25,) as amended by an act approved January 27, 1846, (Laws 1846, p. 116,) and by chapter 353, Private and Local Laws 1855. The first of said acts authorized the raising of the dam to such a height as to afford a fall of two feet nine inches; the second act authorized a height giving a fall of four feet; and the third act an elevation giving a fall of eight feet in ordinary stages of water. In 1847 the land, dam, water power, and an appurtenant canal or raceway were all owned by Smith, Walker, and J. B. Doe in individual shares; Smith owning five eighths, Walker one fourth, and Doe one eighth thereof. The dam had then been so far constructed as to afford a head of about four feet. It was made of brush, stone, and timber, and was not very substantial, and allowed considerable water to flow through it. During the year 1847 Smith, Walker, and Doe completed and put in operation a flouring mill at the south end of the canal, equipped with six run of burr millstones and eight water wheels, which wheels were supposed to be of the capacity to admit of the passage of 400 square inches of water through the issues of each. This mill is constantly referred to in this litigation as the “Big Mill.” The circuit court found, upon conflicting evidence, that Smith, Walker, and Doe, the primary owners of the dam, spent not exceeding $10,000 in constructing the same, and that they did not at any time construct or add to the same so as to afford a greater head than four feet, but that the subsequent additions and repairs to the dam, by which a greater head of water, i. e., about 7 1/2 or 8 feet, was subsequently secured, were made and paid for by persons to whom the perpetual use of specific quantities of water was afterwards conveyed by said primary owners and by the owners of certain water reserved for the use of the “Big Mill.” In May, 1847, Smith, Walker, and Doe contracted in writing to convey to A. B. and E. M. Jones a lot upon the water power, “together with the perpetual use of 1,200 square inches of water, under a head of four feet or its equivalent under any other head.” The contract also reserved to the primary owners, their heirs and assigns, as an equal right, “water sufficient, judiciously applied, to drive six run of millstones, to be used for such purposes as to them may seem proper.” There was also a covenant by the primary owners to finish the dam and raceway so as to afford a head of four feet; also a covenant by the parties of the second part “to pay their share towards keeping in repair the dam and raceway in proportion to the number of square inches of water by them used.” By oral agreement 300 square inches of water was soon after added to this contract, and, A. B. and E. M. Jones having assigned the contracts to others, a deed was made July 9, 1850, to such assignees in fulfillment of the contracts conveying said 1,500 square inches of water, with the same conditions, reservations, and covenants contained in the original contract with A. B. and E. M. Jones. By mesne conveyances the title to this 1,500 square inches of water has vested in Pliny Norcross, subject to substantially the same conditions, reservations, and covenants. This sale of a specified number of square inches of water was followed by numerous other sales and conveyances of the perpetual use of specified quantities of water. The conveyances run through a long series of years. They are all founded on the Smith, Walker, and Doe title; they all convey water by square inches under a four-foot head, with only one material exception. This exception is contained in a deed made February 27, 1849, by Smith and Doe to Stevens and Older, which conveys “550 square inches of water to be drawn through an aperture of that capacity under a head of four feet, or water sufficient under any other head to produce the same power.” The title to this 550 inches has now vested in the plaintiff the Janesville Cotton Mills. In many of the conveyances the grant is of so many inches under a four-foot head, “or sufficient water under any greater head to be equivalent thereto in power.” The reservation of water sufficient, judiciously applied, to drive six run of millstones, is repeated in substantially the same terms in all the deeds from the primary owners or their successors in the ownership of the “Big Mill.” This reserved water is referred to in the testimony as the “Big Mill Water.” The covenant to repair ratably in proportion to the amount of water used is contained in substantially the same terms in all the deed. In 1851 the first repairs were made upon the dam by the levying of ratable assessments upon the owners of water to the amount of about $5,000, and after this time numerous repairs were made during the ensuing years, which were paid for by like assessments which were made, collected, and expended up to the year 1866, by or under the direction of A. Hyatt Smith, and the circuit court found that it was by means of the moneys raised by these pro rata assessments since the year 1855 that the dam and race were enlarged, improved, and raised so as to afford all of the head of water in excess of four feet which has ever existed at said water power, and that the aggregate sum so raised by assessment and expended exceeds $50,000. The court also found that the dam and race were now about double the width and height of the original dam and race, and were permanently and substantially constructed; that little, if any, of the original dam now exists; and that all of the expense of such additions and improvements to the dam and race has been defrayed from the pro rata assessments made from time to time. These assessments have been made uniformly by taking the aggregate amount of inches of water sold and that reserved for the “Big Mill,” and dividing the expense proportionally among the owners of water according to the amount owned by each. In making these assessments no attention has ever been paid to the fact that the head has been increased from four to eight feet, and the amount of the reserved or “Big Mill” water has always been placed at 3,200 inches. The court also found that the primary owners have at all times represented that the reserved or “Big Mill” water amounted to 3,200 square inches, and the court found also that 3,200 square inches of water at a fourfoot head were in fact sufficient to drive six run of millstones with necessary machinery, and that 3,200 square inches were in fact the amount reserved for the “Big Mill” under the reservation clause contained in the conveyances by the primary owners. The “Big Mill,” so called, was destroyed by fire in 1871, and the reserved or “Big Mill” water has been sold in parcels, aggregating 3,200 square inches; the plaintiff cotton mills now owning 2,550 square inches and the balance being divided among a number of the parties to this action. The total number of square inches of water, including the 3,200 inches of “Big Mill” water, which has been sold and conveyed, is 13,532, all of which is owned by the parties hereto. Differences arose between the various owners of water rights, especially between the appellants, Ford and Crossett, on the one side, and the remaining owners upon the other side, as to the amount of water furnished by the dam, the amount of the reserved or “Big Mill” water and the method of measuring or regulating the consumption of water, and in consequence of such differences this action was brought in the year 1881 to obtain a judicial determination of the rights of all the owners of water rights, and for the appointment of commissioners to ascertain and report the amount of water supplied by the dam, the head which should be maintained, the best mode of measuring the water, the basis of apportionment of the expenses of maintaining the dam and power, and to report to the court. During the course of the litigation Edward Ruger and George A. Houston were appointed as commissioners under the prayer of the complaint, and made report as to the most feasible method of measuring the water and the proper basis of apportionment of the expenses of measurement of water and maintenance of the power. After a long trial findings and judgment were entered which were in the main adverse to the claims of the appellants, Ford and Crossett, and from such judgment this appeal was taken.

A. A. Jackson, ( I. C. Sloan, of counsel,) for appellants.

William Ruger and John Winans, for respondents.

WINSLOW, J., ( after stating the facts).

The trial of this case was very long. The record before us contains nearly 1,000 printed pages. We have carefully examined it, and are satisfied that the findings of the circuit judge upon those questions in the case, which are purely questions of fact, are amply...