
    Richard Elson v. Joseph Seaburg.
    S. sold and conveyed to an incorporated canal company lands and water-power, with right to build a dam and flow lands, which the company by its charter had the right to appropriate, by paying such damage as assessed by commissioners, on claim made by the owner, as prescribed by charter. S. reserved in his deed the right to claim damages in case certain of his lands should be inundated by means of the dam. The company having built the dam, and constructed its canal, by means of the dam, flowed said lands. S. preferred no claim for damages. ■ The company sold and conveyed the dam and water power to E., and afterward ceased to operate its canal. The lands continuing to be inundated by the dam, S. brought an action against E. for damages for nuisance. Held:
    1. That the deed of S. to the company granted the right to flow the lands as an incident to the conveyance, subject only to a right to prefer a claim for such damages under the charter of the company.
    2- That upon S. neglecting to present such claim against the company, E. acquired by his deed an absolute right to continue said dam, as if he (S.) had preferred his claim and received full compensation from said company.
    Error to the district court of Stark county.
    On the 28d day of March, 1855, Joseph Seaburg filed his petition in a civil action, in the court of common pleas of Stark county, against Richard Elson, to recover damages to certain lands of said Seaburg, situate on either side of a certain stream of water called the Big Sandy. The damages sought to be recovered result, as is stated in the petition, from the overflowing of the water of said stream, in consequence of a milldam across the same, kept up and maintained by said Elson.
    In his answer to said petition, Elson says that said Seaburg and one David Reed were the owners of the mill-seat on said stream of water on w-hich the milldam mentioned in the petition is situate, and that they conveyed the mill-seat and water privilege to the Sandy and Beaver Canal Company, and that the canal company conveyed the same to him, said Elson, on the 2d day of September, 1845. That before this sale by the company to him, the company had commenced the erection of said dam, and after said sale 'finished and completed the same, for the use of said company, and then and there sold all the surplus water-power created by the dam to him, said Elson, with the privilege of using it. That said Seaburg resides near the milldam, and that it was erected by his permission and license, and that it has been kept up by him, said Elson, for the purpose of propelling his mills, situate on said stream.
    The cause was tried, on appeal, in the district court, at the May term, 1858, to a jury, and resulted in a verdict for Sea-burg, the plaintiff. Elson moved the court for a new trial, but upon what grounds does not appear from the record. This motion was overruled, and judgment entered on the verdict.
    It appears from the bill of exceptions taken on the trial in the district court, that the plaintiff Seaburg gave in evidence a deed to himself from Henry Clark and others, dated March 1, 1831, vesting him with title; and 2d, a deed from himself and wife, and David Reed and wife, dated April 5, 1839, to the Sandy and Beaver Canal Company.
    It appears from an inspection of this latter deed, a copy of which is made a part of the bill of exceptions, that it conveys to said canal company, their successors and assigns, certain described tracts of land, commonly called “ Seaburg & Reed’s mill-site.” And the conveyance is subject to the proviso that “the said company shall not inundate the lands belonging to said Seaburg below the mouth of Indian Run. In the event of their inundating said land, said Seaburg reserves the right to claim damages.”
    The plaintiff was next called and examined as a witness in his own behalf; also, various other witnesses were called and examined, and they gave testimony tending to show that within the time, and during all the time in the petition alleged, the defendant had “ kept up and continued ” the milldam in the petition described; and that his lands, to wit.: “ below the mouth of Indian Run,” had been inundated by reason of the keeping up of said milldam, during the period claimed for in said petition; and also gave testimony as to the amount of damages.
    The defendant • then gave testimony tending to show that the lands of the plaintiff never were or had been inundated by the erection of said milldam. That upon the Big Sandy Creek, he had a mill-site and privilege, of which he had been in possession for years; that on the second day of September, A. D. 1845, the Sandy and Beaver Canal Company having located its canal, by article of agreement, sold, or agreed to sell to said defendant the same premises, no more nor less, than the company had acquired title to by said deed from Seaburg and wife and Reed and wife, to said company ; that he immediately thereafter took possession under said article of agreement, paid the purchase money, and has continued to hold and have possession to this time ; that the canal company was incorporated in 1828 ; and in the years 1845 and 1846, erected the milldam in the plaintiff’s petition mentioned, and before the sale or article with the defendant; that said dam was erected as a part of, and in connection with, the canal and its works ; that said dam while said canal was in use, if not essential to, was part of the means used in navigating and carrying on the same, and was the route and means selected by the company’s engineers in its location, and built by the company for the purpose of aiding the navigation of the canal, as a feeder thereof; that since the purchase by the defendant, he has in no manner kept up said milldam, or used it differently from the maimer in which it was kept up and used by the canal company, after the sale to him; that the same has been raised no higher; that after the purchase from the canal company, he abandoned his old dam, and the same was destroyed to aid in the erection and navigation of said canal; that said plaintiff never had made claim for damages under the ninth section of the act of incorporation of said canal company; that said canal company commenced the erection of said canal in 1835, but that the same was for a long time suspended, and resuscitated in 1845, when the company proceeded to erect and did erect the same, and for a time the same was navigated; but in September 1853, the canal company failed, ceased to navigate the canal, and the whole canal and the organization of the company since that time have been and continue to be abandoned.
    The defendant further gave evidence tending to prove that said dam was erected by said canal company with the license, knowledge, and consent of said plaintiff; which evidence the plaintiff introduced proof to rebut.
    The counsel for the defendant requested the court to charge the j ury—
    1. That the deed from Seaburg and wife and Reed and wife, to the canal company, dated April 5, 1839, passed from them the title to said “ Seaburg & Reed’s Mill-Site” to the said grantee, with the exceptions and conditions in the deed named.
    2. That the canal company had power to convey-the same mill-site to the defendant.
    3. That if the canal company, in 1845-6 erected the said milldam upon the site so purchased by said deed of April, 1839, and used and continued to use the same for the purpose of navigating the canal until September, 1853 ; and while so using the same, and from the time of commencing so to use the same, the same head of water was kept up, and the same flowing existed, as has existed during the time the said dam has been continued and kept up by said defendant, and the said defendant has raised the dam no higher, and has done no act by which the flowing back of the water has been increased; chat in this form of action the plaintiff can not recover.
    
      4. That under the deed of April 5,1889, Seaburg, if his land below the mouth of Indian Run was inundated by the building of the dam, and the flowing back of the water, while the dam was owned, used and kept up by the canal company, must pursue his remedy for damages under the charter of said company.
    5. That if the jury find that the plaintiff’s land, mentioned in the deed, after the building of the dam in 1845-’6 by the canal company, was inundated, and inundated by reason of the building of the dam, and this was known to Seaburg all the time the canal company owned the dam, and was by him acquiesced in, in this, that he made no claim of damages against the canal company, that he can now claim no damages of the defendant, unless he can show, from some act or deed of the defendant, that the dam has been raised by him since his purchase, or that by some other act of the defendant, the water has been caused to inundate the lands of the plaintiff in the petition mentioned, more than the same was inundated by the erection and continuing of the dam by the canal company, from 1846 to 1853, the date of the decease of the company.
    These requests the .court refused, except as hereinafter mentioned, and charged as follows:
    The court charged the jury as first and secondly above requested, but refused to charge as thirdly, fourthly, and fifthly, above requested. Upon the subject matter of the last three propositions, the court charged the jury that the deed from Seaburg and others, of April 5,1839, to the canal company, conveyed the right to erect a dam, where the dam in the petition mentioned was erected, but not in such manner as to inundate the plaintiff’s land below the mouth of Indian Run. That if his said land was inundated by the erection or keeping up of the dam, the plaintiff was not limited in his mode of redress, to the remedies provided for damages under the charter of said canal company. That so far as related to this part of the case, if the jury found, from the proof, that the plaintiff’s land below the mouth of Indian Run was inundated, and thereby injured, by the keeping up of said dam by the defendant, subsequent to September 22, 1853, the plain ■ tiff might have a right to recover in this form of action, notwithstanding the jury should also find that the plaintiff’s said land was also inundated by reason of said dam, from the time of its erection in 1845-6, and the same was known to the plaintiff, and he had made no claim for damages against said canal company therefor.
    To which refusals to charge, and to the charge as given, the defendant excepted, and now assigns the same for error in his petition in error, filed in this court, to reverse said judgment.
    
      TJpliam, Letter Eehley, for plaintiff in error.
    
      Bliss McSweney for defendant in error.
   Sutliit, J.

The single question of title, is the one upon which all others raised upon the record in this case, necessarily depend. If the defendant acquired from the plaintiff, whether immediately by deed of grant from him, or only mediately by deed from the grantee of the plaintiff, he had the title, the right so parted with by the plaintiff, and acquired by himself, to flow the land. But, on the other hand, if this incidental right to flow the plaintiff’s land below Indian Run was never conveyed by the plaintiff, nor acquired by the defendant, the plaintiff’s right of action for any damage so occasioned him, can not be disputed.

How, then, stands the statement of facts, in regard to this single point? The plaintiff gave in evidence the deed by himself and others, of April 5, 1839, to the canal company, their successors and assignees, etc., conveying, in fee simple, the mill-site in question, under the following description, after describing the several tracts of land embracing, and contiguous to the same, “ commonly called Seaburg and Reed’s mill-site.” Then follows a description of certain other tracts of land, and a right of way through the same, concluding as follows: “for the purpose of constructing thereon, a canal, towing-paths, and other works necessarily therewith connected; provided the said company shall not inundate the lands belonging to the said Seaburg, below the mouth of Indian Run. In the event of their inundating said land, said Seaburg reserves the right to claim damages.”

Now, it here appears, in the first place, that the mill-site was sold, as well as the right of way for the contemplated object, a permanent canal. The flowing of the water is mentioned as a contemplated incident of the grant, and inasmuch as the principal object of the dam and flowing of the water was the perpetual supply of the canal, it is not to be supposed that the continuance of this grant of the incident, any more than that of the land or bed of the canal, was dependent upon, or restricted by the fact or event of the dam occasioning the inundation of the lands mentioned, “ below the mouth of Indian Run.” And again: such a construction of the grant is not only opposed to the object contemplated, as expressed in the deed, and shown by the reasonable intention of the parties, naturally deducible therefrom; but there is an express provision in the deed contemplating the flowing of the land in question. In this contingency there is this express provision in the deed in favor of the plaintiff: “ In the event of their inundating said land, said Seaburg reserves the right to claim damages.”

The grantees of the plaintiff, the canal company, might, under the provisions of their charter, the statute law of the State, acquire, by absolute purchase, all the means and facilities for the construction of their canal and the exercise of their purchase, if they could agree with all the respective proprietors; or, in case the owner in any case would not agree to sell at what they considered a fair value, the company might exercise the right of eminent domain, with which invested by the State, for the -purpose of constructing the public improvement, by appropriating the private property for-such purpose, on paying the damages claimed and assessed, as prescribed, by the legislature. And where the property was appropriated by the company, if the owner made no claim for damages, the appropriation was, as in the case of public roads, etc., considered absolute and good; and no action in trespass lay for such appropriation. Such exercise of the right of eminent domain, under the authority of the State, was lawful, and no right of action could arise therefor as for an unlawful act. The right of action on the part of the private owner was simply to recover his just compensation, in the manner prescribed by the legislature, occasioned him by such lawful act on the part of the company, in so legally appropriating his property, or injuring it, by the lawful construction of the public improvement.

This right of appropriation -without statutory proceedings, the plaintiff, to the full extent of his deed of sale, obviously surrendered to the company. He conveyed to them the land and the water-power, and privilege -to erect and perpetually maintain such a dam as necessary for their purposes, and such as was by the grantees built, and has ever since been maintained, with a single reservation. And what was that reservation ? Not that the company should never maintain a dam at such elevation as to occasion an inundation of these lands. But the grant was without any reservation, providing the lands below Indian Run should not be inundated by reason of the dam to be erected; and “ in the event of their inundating said land, said Seaburg reserves the right to claim damages.” This is the precise reservation, in the language of the deed, which the plaintiff inserted, after granting the right to build and perpetually maintain the dam. But it is to be observed, this clause of contingency, unlike that in a mortgage, is not one containing ,a stipulation that, upon the happening of the event, the deed shall cease to be operative, and become void. The clause of contingency, on the contrary, leaves the operative force of the deed as a conveyance in full force, and only annexes the condition of the event, that the grantor, upon the happening of the contemplated event, shall have the right, if he sees fit to exercise it, “ to claim damages” therefor. He could not reserve a right which he did not possess independent of the grant. The only right which he would have had to claim damages, if the conveyance had never been made, and the property had been appropriated for the building of the dam and flowing the land, would have been to prefer his claim against the company, and. procure an appraisal, and upon obtaining an estimate of damage sustained, as provided by their charter, to recover the same as his just compensation. This, then, is the right which the plaintiff reserved; and this right he, therefore, had in the event of their inundating said land, which it is said happened. But the plaintiff was not constrained to exercise this reserved right. It was entirely at his own option to as■sert his right by preferring his claim for damages against the company, as prescribed, and have an appraisement, and, if found that he had sustained damages, to recover the same of the company, or to forego the assertion of that right; but in neither case could the conveyance, by him so made, be at all invalidated. Eor if the plaintiff had seen fit to assert this right, and make his claim, the estimate of damages to have been made by the appraisers must have been necessarily for a perpetual maintenance of the dam and flowing of the lands, and such recovery would have been in full satisfaction for the same, and a perpetual bar to any future or further claim in that regard. And if the plaintiff saw fit to waive the assertion of his right so reserved, that waiver toward the company, the same as its assertion, ought in equity, as well as in law, to be conclusive of the plaintiff’s right of action in the premises against the defendant, as a Iona fide purchaser from, and .grantee of the canal company, under such state of facts.

We think, therefore, that there is error in the record, as shown by the refusal of the district court to charge the jury as requested, as w'ell as in the instructions so given by that court to the jury. And for such error, the judgment of that court must be reversed, and the cause remanded for further proceedings.

Judgment accordingly.

Brinkerhoff, C.J., and Scott, Peck and Gholson, JJ., concurred.  