Powers v. Hibbard
| Decision Date | 05 October 1897 |
| Citation | 72 N.W. 339,114 Mich. 533 |
| Court | Michigan Supreme Court |
| Parties | POWERS v. HIBBARD ET AL. VOIGT ET AL. V. POWERS |
Cross appeals from superior court of Grand Rapids, in chancery Edwin A. Burlingame, Judge.
Bill by William T. Powers against Wellington Hibbard and Peter Graff Jr., to restrain the wrongful diversion of water for power and for an accounting. After answer and proof, a decree was rendered for complainant. The interest of defendants passed to Carl Voigt and William G. Herpolsheimer. As complainant did not revive the suit, Voigt and Herpolsheimer filed a bill of revivor and supplement, to which Powers filed a cross bill by way of answer. After further pleadings, an order of revivor was made, and further proof taken. From a decree for Powers granting affirmative relief on the cross bill, both parties appeal. Affirmed.
Upon the grant by deed of water power, the amount thereof being expressed in "run of millstones," and the amount of water necessary to generate such power being a variant quantity, depending on the place in the water canal at which the water is drawn, and other matters, the circumstances surrounding the granting of the deed, such as the position and amount of water in the canal, may be shown by parol evidence, for the purpose of explaining the terms of the grant.
Kingsley & Kleinhaus, for complainant Powers.
Crane, Norris & Stevens, for defendants Voigt and Herpolsheimer.
This controversy involves the water power of the west side of Grand river, in the city of Grand Rapids. The power is furnished by the dam at the head of the rapids. There are two canals extending from the dam down the river, one upon either side. The complainant in the original bill, in 1866, was the owner of the power on the west side. Prior to 1866, guard gates had been constructed at the head of the canal on the east side. This power was owned by Martin L. Sweet and others. On August 15th of that year, by a contract in writing, the owners of the power on the east side agreed with complainant Powers to build a dam across the river from these head gates, and that he should "hold, use, and enjoy the one-half part of all the water of Grand river as it shall flow and continue to flow into the pond made by such dam when constructed, subject only to the rights of the public therein, wholly irrespective of where the main channel or current of said river naturally may be." A like agreement was inserted in the same contract, giving Martin L. Sweet and the other owners like privileges on the east side. From that time the complainant has been the owner of this power on the west side.
On May 29, 1873, the complainant and his wife conveyed to David L. Stiven certain lands and water privileges, as follows: "The said parties of the first part, for and in consideration of the sum of ten thousand seven hundred and fifty dollars to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold, remised, released, aliened, and confirmed, and by these presents do grant, bargain, sell, remise, release, alien, and confirm unto the said party of the second part, his heirs and assigns, forever, the following described lands, premises, water power, and other privileges and easements situate and being in the city of Grand Rapids, county of Kent, and state of Michigan [description omitted], with a right, as connected with and appurtenant to said lands and premises, to put in a flume extending from the said described premises to the canal adjacent thereto, which flume shall be so constructed and maintained as to admit of the free and safe passage of teams over the same at all times, and which flume forever shall be for the exclusive use of said lands and premises and the water rights hereinafter conveyed to be used thereat, and forever shall be kept and maintained by the said party of the second part and those claiming by, from, through, or under him at his and their own expense. Also, the right to take and draw water from the said canal at all times hereafter, and use on said lands and premises, but not elsewhere, water for the purpose of power to the extent of three (3) run of millstones as described below, which power may be used on said lands and premises for any purpose as propelling power. But, when used for flouring purposes, each of said run of millstones, as named and described below, shall be so understood that the same shall include all the machinery necessarily or ordinarily used for operating all departments of a flouring mill properly and economically conducted, which said three run of millstones are of the first class, as hereinafter provided and explained, and are runs numbered twenty, twenty-one, and twenty-two of said first class, it being expressly understood and provided that the lands, premises, rights, and water power and the interest and estate therein hereby created, and vested in said party of the second part, shall for all time hereafter be held by him and those claiming or to claim by, from, through, or under him, charged and subject to the limitations and conditions as to the use of water and the proportional expense of keeping said canal and the dam across Grand river at the head thereof in order and repair, as hereinafter provided. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder, remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, and demand whatsoever of the said parties of the first part, either in law or equity, of, in, and to the above-bargained premises, with the water power, hereditaments, and appurtenances, to have and to hold the said premises as above described, with the appurtenances unto the said party of the second part, and to his heirs and assigns, forever. And the said parties of the first part, for themselves, their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that, at the time of the ensealing and delivery of these presents, they are well seised of the premises above described, as of a good, sure, perfect, absolute, and indefeasible estate of inheritance in the law, in fee simple; and that the said lands and rights are free from all incumbrances whatever; and that the above-bargained premises, in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all and every person or persons lawfully claiming or to claim the whole or any part thereof, we will forever warrant and defend. It being expressly understood that the term 'run of millstones,' as above used, is a power sufficient to grind, when used for grinding, thirteen bushels of wheat per hour, and when used for propelling machinery for other purposes, fifteen horse power, as the same is ordinarily estimated. And it being also expressly understood and agreed that the water power above described shall at all times be used by said party of the second part, his heirs and assigns, in such manner as shall secure the greatest amount of head and fall at the place herein designated for its use, and shall also be used carefully and economically with water wheels of the most approved pattern and design, at least of the economy and capacity of the 'Johnsville Wheel,' so called. And it being also expressly understood that the water power on the west side of Grand river, at said city of Grand Rapids, Kent county, Michigan, is divided by the proprietor thereof into two classes, the first of which classes includes and comprises sixty-six runs of millstones as above defined, numbered consecutively from one to sixty-six, inclusive, none of which runs of millstones in said first class do or are to have any priority of right to the use of water in low stages thereof over or as against each other, but all of which said first class do and shall have such priority over all and any of the second class in case of low water, and which second class, numbering from sixty-seven, inclusive, are subrogated to the right of said first class in that respect, and shall not be used when by reason of law water their use will be detrimental to the fair and ordinary use of any of the first class, and the rights of the owners thereof, but which said second class do and shall have the right of priority over each other in the use of water (in case of insufficiency for the use of all), according to and in the order of their numbers, numbering from number sixty-seven, which is first in priority of said second class. And it is hereby further understood and agreed between the parties hereto that the party of the second part, or those claiming under him, shall maintain and keep in good repair a roadway on the bank of the canal on the west line of said described premises, and shall not obstruct or cause to be obstructed, or so arrange said roadway as not to permit, the free, safe, and commodious use of the same at all times for the passage of teams to and from the lands and premises adjacent on the south of said
premises; and that said second party shall not do or suffer any act or thing whatever which shall or may tend in any manner or degree to lessen or obstruct the free flow of water in said canal, or prejudice the rights of other water-power owners thereon; and, further, that he will at all times and under all circumstances bear and pay his due proportion of the expense of keeping said canal, and the dam at the head thereof, in repair, the same to be assessed equally upon such of the second class as have been sold by said Powers, and all of the first class, share and share alike. In witness whereof," etc....
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