Suit in equity by John P. Pinkum against the city of Eau Claire to compel defendant to perform the conditions of a deed granting an easement, or, in the alternative, to annul the deed, and for damages for failure to perform the condition. A demurrer to the complaint was overruled, and defendant appeals. Affirmed.
The other facts fully appear in the following statement by WINSLOW, J.:
Appeal from an order overruling a demurrer to the complaint. The complaint states that on the 16th day of January, 1877, Ira Mead and Charles Bolles owned in fee lot 2, in section 18, township 27, range 9 west, and on that day made and delivered to the defendant city a deed, duly executed and acknowledged, which was accepted by the city, which is set forth at length, and which, after certain recitals, proceeds as follows: “Said parties of the first part, in consideration of one dollar and other valuable considerations received, to the full satisfaction of the said party of the second part, for themselves and their heirs and assigns, doth covenant and agree with, grant and confirm unto, the said party of the second part, its successors and assigns, that it shall be lawful for the said party of the second part, its successors and assigns, and their respective tenants, officers, agents, and servants, and any other person or persons, for the benefit or advantage of the said party of the second part, or its successors or assigns, at all times freely to enter upon the lands and premises situated in the city of Eau Claire, in the county of Eau Claire, in said state, and described as follows, to-wit: Lot 2, (2,) in sec. eighteen, (18,) township number twenty-seven (27) north, of range number nine (9) west, for the purpose of constructing, maintaining, and operating a canal or race-way along and upon the westerly shore of the Chippewa river, as may be most practical and convenient, and a public high way along and contiguous to the westerly shore of said canal, not exceeding four (4) rods in width, upon a strip of land not exceeding eight (8) rods in width, adjacent to said Chippewa river, from the southerly line or boundary of the lot or parcel of land in said lot numbered two, conveyed by these grantors to the grantees herein, of even date herewith, to the southerly boundary of said lot number two, (2,) of sufficient size and capacity to connect the Chippewa river with Half-Moon lake, for the purpose of running and floating logs, timber, fence-posts, and railroad ties into said Half-Moon lake, and holding and booming the same therein, and for all other and every the uses, purposes, and objects contemplated, authorized, or required by said several legislative acts. Also to cut trees and timber, quarry stone, and dig earth, and remove and use the same for all and every the uses, purposes, and objects aforesaid; all the above-mentioned rights, privileges, and easements hereinbefore granted and vested in the said party of the second part, its successors and assigns, to be held, enjoyed, and used in and upon said strip of land eight rods wide, and not otherwise; the westerly boundary line of said strip of land to be 8 rods from and parallel to the Chippewa river at high-water mark: provided, however, and these presents are upon these express conditions and reservations following, to-wit: That the grantee herein, its successors and assigns, shall, before the water is let into said canal or race-way for the purpose of operating and using the same, as herein provided, construct, finish, and operate the said high way along the westerly shore or side of said canal or race-way at least sixteen (16) feet in width, and so that no part of the bed of the same shall be over ten (10) feet above the surface of the water as it may or shall run in said canal or race-way at high-water mark on the Chippewa river. (2) That the grantee herein, its successors and assigns, shall pay all taxes of every name and nature which shall be lawfully assessed upon the rights, privileges, and easements herein granted to them, and upon all the works, erections, and structures made by them, or any of them, on said strip of land for the purposes aforesaid. (3) That the grantors herein reserve to themselves, their heirs and assigns, the right and privilege at all times to cut trees and timber, quarry stone, and dig earth, and remove the same, from said strip of land. (4) That the grantors herein also reserve to themselves and their heirs and assigns all the stone which may be dug, quarried, or blasted by the grantee herein, its successors and assigns, in the construction and completion of any of the works, and not needed or used by them, or any of them, for the uses, purposes, and objects contemplated, authorized, or required by said several legislative acts, and in the construction, completion, maintenance, and operation of said canal or race-way. (5) That none of the rights, privileges, and easements herein granted to the said grantee, its executors, successors, and assigns, shall be enjoyed by them, or any of them, beyond the boundary or limits of said strip of land eight rods in width, herein described. (6) That the said canal or race-way, and the highway and other works hereinbefore mentioned, shall be fully constructed and completed within the period of five years from the date of these presents. To have and to hold the above-granted rights, privileges, and easements in and to the lands and premises aforesaid, and every of them, unto the said parties of the second part, their successors and assigns, to their own proper use and benefit forever, for all and every the uses and purposes aforesaid, and for no other use and purpose whatsoever, subject, however, to all the aforesaid exceptions, conditions, and reservations: provided always, and these presents are upon the express condition, that if at any time the above-mentioned contemplated works shall cease to be maintained and operated for the purposes contemplated, required, and authorized by said several legislative acts, the covenants, agreements, and grants herein contained, and these presents, shall cease, and become null and void for every purpose whatsoever.”
The complaint further proceeds as follows: “That immediately thereafter the said defendant entered upon said lands so described, and did build and construct its dam, and build its race-way, and let the water therein, built the other works in connection therewith, and did use and appropriate to itself the full use and possession of that part of said lot two (2) so conveyed, and all the rights, privileges, and easements therein granted; and ever since said time has maintained and used said premises, and been in the exercise of the full use and enjoyment of all said rights, privileges, and easements. And the plaintiff further shows that all the rights, considerations, covenants, and conditions in said lease which were by its terms to be performed by the said defendant, and the full use and benefit thereof, and the right to recover for the same and to enforce performance thereof, was, on the 5th day of January, 1880, duly assigned, transferred, and sold to this plaintiff for a valuable consideration by the said Mead and Bolles, and the said lot two duly conveyed to the plaintiff by said Mead and Bolles and their wives, respectively. And the plaintiff further shows that the said defendant has wholly neglected, failed, and refused to perform any of the conditions or covenants expressed in said deed on its part to be performed as a consideration for said grant, and specially failed and neglected to construct or operate the highway along the westerly shore of the canal, therein described, which was the consideration for such grant. That the banks of said lot two, from the Chippewa river, were at the times mentioned, and now are, very steep,--almost perpendicular,--to a length of about one thousand three hundred and twenty feet, and consist of a rocky ledge of sandstone. That such ledge at that time, and continuously since, was of great value as a stone quarry; the stone therein being of exceptionally good quality for building purposes, and superior to the stone in most other quarries adjacent to Eau Claire. That, in order to work said quarry successfully, it was necessary that the...
