Nichols v. New England Furniture Co.

• Decision Date: 18 May 1894
• Citation: Nichols v. New England Furniture Co., 100 Mich. 230, 59 N.W. 155 (Mich. 1894)
• Court: Michigan Supreme Court
• Parties: NICHOLS ET AL. v. NEW ENGLAND FURNITURE CO.

59 N.W. 155

100 Mich. 230

NICHOLS ET AL. v. NEW ENGLAND FURNITURE CO.

Supreme Court of Michigan

May 18, 1894

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Ejectment by Sarah Nichols and others against the New England Furniture Company. Judgment for plaintiffs. Defendant brings error. Affirmed.

Uhl & Crane (Fletcher & Wanty, of counsel), for appellant.

Bundy &amp Travis (John W. Champlin, of counsel), for appellees.

McGRATH C.J.

Plaintiffs the widow and children of Isaac Nichols, bring ejectment to recover the premises lying between the north line of lot F extended, the south line of lot G, extended, the center line of the canal, and the east line of Mill street, as shown on the following sketch; the defendant having constructed a building on piles over the canal on said premises:

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Defendant claims title to the premises in question from two sources (1) That, by conveyance of lots F and G according to the plat, they have the title in fee to Mill street, and to the center of the canal, as part and parcel of lots F and G; and (2) by adverse possession. Prior to 1836, the owners of certain land abutting on Grand river commenced the construction of a dam across said river, and a canal along and upon the eastern shore thereof. In 1836 the proprietors of the land and canal made and recorded a plat of the same. The plat shows the location of the canal, dam, guard gates, chute, basin, thread of the river, and the subdivision of the adjacent land into lots, with streets and alleys. A large section of the territory platted lies east of Canal street, and from near Bridge street Canal street runs along the east bank of the canal to a point north of the dam. The canal is 81 feet in width, and Mill street is 25 feet wide. There appear upon the plat, under the head of "Explanations," these words: "A strip of ground 8 feet wide, lying on the east bank of the canal, and extending from the guard gates to the corner of lot No. 1, is reserved as private property; also 8 feet in front of the basin; also 6 feet on the east side of the canal in front of Bank street is reserved as private property; also five feet on the west bank of the canal, in front of Mill street, is reserved." The title of the land at the time the plat was recorded was in Lucius Lyon and Nehemiah O. Sargeant, each owning an undivided half. Sargeant, in July, 1836, conveyed his undivided half to Carroll, and in October, 1844, Carroll reconveyed to Rice, administrator of the estate of Sargeant. Rice conveyed to Lucretia Lyon, who conveyed to Daniel Ball. Lucius Lyon conveyed his interest to Thayer, and Thayer to Daniel Ball. Plaintiffs derive their title through conveyances from Ball. The deed from Sargeant to Carroll contains in the description not only the lands described by government subdivision, but adds: "Together with all the improvements, mills, and mill races, canals, water lots, water power, pertaining to and belonging to said premises." It also contains a reservation of a third interest in mill lots A, B, and C, as the same are designated on such plat, "together with the quantity of water specified and defined for the use of said mill lots in the conveyance of one third thereof to John P. Calder, reference being thereto." The deed from Rice to Lucretia Lyon conveys the canal water power and undivided half of basin. The deed from Lucretia Lyon to Ball conveys "all the right, title, and interest in and to those certain premises known as the 'Canal Water Power' and appurtenances, including the land between the basin and Canal street, and the use of the basin, situated in the village, now the city, of Grand Rapids, Kent county, and state of Michigan, according to the recorded plat thereof, subject to all rights heretofore made." Lucius Lyon conveys to Thayer "all the lands, tenements, premises, water privileges, and appurtenances which the said party of the first part owns and holds, either in severalty or otherwise, within the corporate limits of the village of Grand Rapids, in the county of Kent, and state of Michigan, as aforesaid." Thayer conveys to Ball all the interest conveyed by Lyon to Thayer. Daniel Ball, on February 29, 1864, by separate deeds, conveyed to each of the following named parties parcels of land in said plat, and also the undivided interest in the water power, bed, and banks of the canal, indicated by the figures following the name of such grantee: S. F. Perkins, 1875-8000; G. S. Deane, 375-8000; Isaac H. Nichols, 1650-8000; to Martin L. Sweet, 1375-8000; and to R. E. Butterworth, 1225-8000. The denominator 8000 represents the total value in dollars of the bed and banks of the canal and strips of land on either side, as agreed upon by the parties, and the numerator the value of the undivided interest of each purchaser. The consideration recited in the deed to R. E. Butterworth was $1,225, and the property was described as follows: "All of mill lot L, so called, according to the Kent plat of the village, now city, of Grand Rapids, lying north of and adjoining the premises owned and occupied by the said Butterworth, being about ninety-two feet; also the undivided half of lot K according to said Kent plat; also all riparian rights in and to the bed of Grand river west of said lot L, to the center of Grand river, and the undivided half of all riparian rights in and to the bed of Grand river west of said premises described as lot K; also the right to draw from said canal sufficient water to propel two runs of mill stones with the necessary gearing attached, used in an economical manner; also the undivided 1225-8000 of all said parties of the first part's right, title, and interest of, in, and to the canal bed, canal, canal banks, water power, water rights, privileges, and appurtenances in said city, extending from the south end of the canal basin to a point fifty feet north of the guard gates as now located, and to the guard gates and waste way; also the same interest of said parties of the first part in and to the basin and banks thereof, excepting and reserving the vacated portion of said basin, and the right to use the west bank of said vacated basin for a highway; also the same undivided interest of said parties of the first part of, in, and to a strip of land eight feet wide, more or less, lying between the east bank of the canal and Canal street, extending from the northeast corner of lot one, Kent plat, to a point fifty feet north of the guard gates as now located, and to a strip of land six feet wide, more or less, on the east side of the canal between Bank street and the canal, and to a strip of land five feet in width, more or less, on the west bank of the canal in front of Mill street, and in all lots, lands, and premises west of the canal to the center of the river between the said line fifty feet north of the guard gates to the south bank or end of the canal basin, together with all water rights, water power, and appurtenances thereto attached and belonging, not this day conveyed to R. E. Butterworth, I. H. Nichols, Samuel F. Perkins, Martin L. Sweet, Gaius S. Deane, and C. C. Comstock, together with all the rights to enter upon the canal banks, bed, and dam above said guard gates to repair and improve the same." Four of the other deeds executed by Daniel Ball as aforesaid convey water lots or mill lots, and each of them contains a similar clause granting the right to draw water from the canal for the water-lot use. Each of said Ball deeds contains a grant of an undivided interest in canal bed and banks, in language similar to that quoted from the deed to Butterworth. We are cited by defendant to a conveyance made in 1836 by Lyon & Sargeant to Calder of an undivided one-third of mill lots A, B, and C, wherein such lots are described as: "Known and distinguished on a map or plan of the village of Kent, made for the proprietors thereof, as 'Mill Lots A, B, and C,' lying between the west bank of the canal and the river, the boundaries whereof are described as follows: 'Beginning at a point on the front side of the west bank of the canal where the north line of Bridge street intersects the same; thence measuring along the bank of said canal northerly 239 1/2 feet to an angle in the bank; thence continuing 60 1/2 feet to the northeast corner of lot A; thence,"' etc. It will be observed that the northeast corner of lot A lies at the intersection of the north line of lot A and the west line of the five-feet strip which is designated as the bank of the canal. Note also that lots A, B, and C were platted from points on the west line of this strip, and none of the lot lines extend across it. The north line of Bridge street on the plat is extended to Grand river, and forms the north line of Mill street. Lot D is platted within the lines of Bridge street, but fronting on Mill street. The north line of Bridge street intersects the east line of lot C at the west side of the strip, so that evidently the words, "the front line of the west bank of the canal," refer to the west line of this strip called the bank of the canal. Proceeding northerly on the west line of this strip or bank of the canal brings us to the northeast corner of lot A, in the description in the deed, and makes the whole harmonious. *** It was not intended by this deed that the grantee's right or title should extend to the center of the canal, for in the same deed it is stated that "said lots above described are to be held in common by the party of the second part with the parties of the first part, subject to the following conditions, restrictions, reservations, and privileges, which are hereinafter mentioned and defined; that is to say: First. The privilege and right to draw from the canal twenty feet of water, which is the quantity appropriated for...