Whittlesey v. Porter

• Decision Date: 15 April 1909
• Citation: 82 Conn. 95,72 A. 593
• Court: Connecticut Supreme Court
• Parties: WHITTLESEY v. PORTER.

72 A. 593

82 Conn. 95

WHITTLESEY

v. PORTER.

Supreme Court of Errors of Connecticut.

April 15, 1909.

Appeal from Superior Court, Hartford County; Howard J. Curtis, Judge.

Action by Laura V. Whittlesey against John G. Porter to remove a cloud from title. From a judgment for defendant, plaintiff appeals. Reversed.

On the 2d of July, 1900, Frank H. Whittlesey, the plaintiff's husband, was the owner of property in Windsor Locks consisting of a tract of land lying between the west bank of the Connecticut river and the canal of the Connecticut River Company, and buildings and machinery thereon, and a water privilege. The finding contains copies of three title deeds of said property to Frank H. Whittlesey executed and recorded, respectively, in 1876, 1877, and 1900. The water privilege is described in said deeds as follows: In the first, "certain buildings, water privilege and land connected therewith * * * including the lease of water from the Connecticut River Company connected with said property"; in the second, "together with a certain lease of water from the Connecticut River Company. Also water wheels * * * and the water privilege connected therewith"; and in the third, "Also all the right, title and interest we have in and to a certain lease from the Connecticut River Company * * * dated January 3 1846, and recorded in the Land Records * * * also all right to the use of water appurtenant to said land granted in said lease."

On said 2d of July, 1900, while Whittlesey still owned said property, the Connecticut River Company executed to him and his heirs and assigns a lease, for the term of 999 years, at a rental of $775, payable semiannually, of a water privilege described in the lease as "a water privilege situated in the town of Windsor Locks * * * between the canal made by said first party * * * and the western bank or shore of the Connecticut river. The water privilege aforesaid shall consist in the right to draw or receive from the canal of the first party, and to use in and upon the water lot or land belonging to and occupied by the second party (describing the land so owned by Whittlesey), during twenty-four hours of each day, Sundays excepted, such quantity of water as will naturally flow through one or more apertures containing in the whole seven hundred and fifty square inches of opening." The lessee was to construct the flumes, water courses, and raceways leading from the canal, and to make and maintain sufficient bridges for the passage of teams, over the length and width of every flume. The lease contains a provision for forfeiture for nonpayment of rent, and was duly recorded.

On July 2, 1900, Prank H. Whittlesey mortgaged said premises to one Coffin to secure the payment of $15,000, including, in the description of the property mortgaged, all his right, title, and interest in said lease from the Connecticut River Company, "and all rights to the use of water appurtenant to said land and granted in said lease," which mortgage is still outstanding. On the 4th of October, 1905, Frank H. Whittlesey, for the named consideration of $1, conveyed the mill property to Sidney A. Morley by warranty deed, subject to the Coffin mortgage, which the grantee assumed. The deed referred to the land conveyed as the same as that conveyed to the grantor by the deeds from Seymour and from Farist and Windsor, above referred to, and described the water privilege as follows: "Together with all my interest in and to a certain lease of water privilege from the Connecticut River Company to F. H. Whittlesey, dated July 2, 1900, and recorded. * * *" On the 4th of October, 1905, Morley mortgaged the property back to Whittlesey to secure the payment of 15 notes of $5,000 each, one payable each year, during the succeeding 15 years. In this mortgage the land was bounded as in the deed of the same date from Whittlesey to Morley, and was further described as "the same land this day conveyed by the grantee herein to the grantor herein, together with the buildings thereon standing, also * * * [here follows a list naming pumps, water wheels, a 250 horse power turbine and case, and numerous other implements and articles of machinery, etc.] and all the machinery, engines and implements situated and used in the manufacturing establishment this day conveyed." The habendum was "to have and to hold the above granted and bargained premises with the appurtenances thereof unto him the said grantee and his heirs and assigns forever." On the same day (October 4, 1905) Morley conveyed the land and water privilege so conveyed to him by Whittlesey to the Whittlesey Paper Company, for the stated consideration of $1, subject to said mortgage to Coffin of $15,000, and the mortgage to Whittlesey of $75,000, both of which the grantee assumed as part consideration for the deed.

Immediately after the execution of the last-named deed, the Whittlesey Paper Company entered into possession of said premises, and have ever since continued to operate said mill and machinery, and use the water power and privilege so obtained from the Connecticut River Company until ejected by foreclosure proceedings, as hereinafter stated. The water is conveyed from the canal to the mill by a steel tube. There is a fall of about 27 feet available for power. The mills have always, for 50 years or more, been run by water power obtained from the canal, and no other water power is available. The mills could not be run by steam in competition with mills run by water power. Without the water power the land and mills are worth about $15,000, and with the water power from $40,000 to $50,000. On the 3d of April, 1900, for the named consideration of $30,000, the Whittlesey Paper Company assigned to John C. Moore of Philadelphia, subject to the $15,000 mortgage to Coffin, all its "right, title and interest in and to a certain lease of water privilege, describing in the assignment, the lease executed as above stated by the Connecticut River Company to Frank H. Whittlesey, and on the 23d of October, 1906, said Moore assigned his interest in said lease to the defendant. Neither Moore or Porter have ever had possession of any part of said land, or ever used said water power. The plaintiff, by assignments made March 10, 1906, became the owner of the mortgage and notes given as aforesaid by Morley to Frank H. Whittlesey. When the first of said, notes of $5,000 secured by that mortgage became due, on March 4, 1906, it was not paid, and on the 18th of October, 1906, the present plaintiff commenced foreclosure proceedings against the Whittlesey Paper Company, and said Moore was also made a defendant; the complaint alleging that he claimed an interest in the mortgaged premises. The complaint described the mortgaged property as it was described in the mortgage to Whittlesey.

The present defendant, Porter, appeared in said foreclosure suit to defend in the name of Moore, and filed an answer setting forth his claimed ownership of said lease of said water privilege, under the said assignments of the Whittlesey Company to Moore and Moore to Porter, whereupon the plaintiff amended her writ and complaint by striking out the allegation that Moore claimed an interest in the mortgaged premises, and also the name of Moore as a defendant, and on the 8th of March, 1907, obtained a judgment foreclosing the Whittlesey Paper Company of all right to redeem the...