
    Edwin M. Hall, App’lt, v. Whitehall Water Power Co. (limited).
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    ■Conveyance—Description in conveyance bounded by creek—Title— Lands under water.
    Where a lot was conveyed by a deed from one who had acquired the same under foreclosure, describing it as being bounded on one side by Wood creek, the bank of the creek along the boundary being a natural wall, precipitous and of considerable heighth, the water-rights in the stream having for a long time been used by the owners of a mill property on the stream, just below the lot conveyed, and no attempt having been made to use the waters of the creek for a power or otherwise by the grantor, until a short time before the execution of the conveyance, when it became available by the destruction of a dam. Held, that the description in the conveyance was not intended to include any part of the waters of Wood creek, and title was only acquired to a strip of land along the stream without any right in the water-power or in the lands under water.
    Appeal from a judgment of supreme court, general term, third department, affirming a judgment of special term dismissing the complaint in an action seeking to retain defendant from setting back water upon the land of plaintiff by means of a dam, with damage for the injury already inflicted.
    
      Esek Cowen, for app’lt; Richard L. Hand, for resp’t.
    
      
       Affirming 34 Hun, 630.
    
   Rapallo, J.

We are of opinion that the plaintiff’s grantor, Hancock, took title under his deed only to the strip of upland, thirty feet wide, lying between William street and Wood creek, and that he acquired no rights in the land under the waters of the creek, or in the waterpower. This, we think, is the true construction of the deed from the referee in the foreclosure suit to Hancock, in view of the situation of the property, and of the circumstances existing at the time of the conveyance and prior thereto. The description in the deed from the referee is similar to-that contained in the deed of the Phoenix barn lot, dated in 1863, from John H. Boyd and wife to Gibbs, under whose lessee, Irwin, Hancock afterwards held the premises in dispute until the sale under the foreclosure. The Phoenix barn lot consisted of a strip of land on the easterly side of Wood creek, lying between William street and the bank of the creek which was precipitous, being a natural wall of stone, the top of which was from twelve to fifteen feet, above the surface, of Wood creek when the water was, high. This strip of land called the “Barn Lot,” was about' 185 feet long and thirty feet wide from William street to the edge of the bank. It had, for many years prior to 1863, been used as a barn-site, and was so used for several years thereafter. No attempt appears to have been ever made by any occupant of the barn lot, prior to 1875, to make'any use of Wood, creek for power or otherwise. The waterpower of the creek had been used for a great number of' years by a factory and grist-mill, north of and adjoining , the barn lot at or near. the mouth of the creek. These establishments were supplied by means of a dam built, across the creek at the north end of the barn lot, which dam had stood from 1818 to 1829, and from 1841 until 1864, when it was carried away. While the dam stood it set back the water opposite the barn lot as to deprive it of any fall;, and thus, as well as by the natural conformation of the land, the barn lot was' entirely separated from the creek, and was in fact enjoyed and treated as a separate property. In 1863, and while the mill and factory were in operation, and the dam was ‘ standing, using all the water-power of' the stream opposite the barn lot, Boyd and his wfife conveyed to Gibbs the lot known as the “Phoenix Barn Lot,” by the following description: “Bounded south by James. Greenough’s lot, west by Wood creek, north by the axe- ' helve shop lot, and east by William street; the lot hereby conveyed is about 185 feet on William street, and about, thirty feet wide from Wood creek to William- street.”

Gibbs continued to use the lot exclusively for the purposes, of a barn until 1868, when he leased the same to Irwin. Irwin subleased to Baldwin & Perry the southerly portion of the lot, and to James D. Hancock the northerly fifty-five feet thereof. The dam previously existing having been carried away, in 1865, Hancock, in 1875, for the first time, undertook to use the water-power opposite the portion of the lot occupied by him. While. Hancock was in occupation as lessee, the whole property known as the “Mill Lot” was sold under judgment of foreclosure of the Williams mortgage, (which was a lien paramount to the title of Gibbs and his lesses), and at the foreclosure sale, which took place August- 31, 1876, Hancock, the grantor of the plaintiff, became the purchaser of the lot in question, and it was conveyed to him by the referee, by deed dated September 5, 1876, wherein it was described as '‘ bounded on the north by lot T, on the west by Wood creek, on the south by a lot marked ‘ 228/ on the east by William street; the lot hereby conveyed being fifty-five feet in length along William street, from and off the north end of said barn lot, and about thirty-eight feet in width from Wood creek to William street.” At the same sale, (at which Hancock was present), and before he purchased the lot, other parts of the mortgaged premises, together with “all the .waters and land under the water of Wood creek ” within the boundaries of the old mill lot, including the land under water, and the waters in front of the barn lot, were sold by the referee to parties other than Hancock; but the referee in this action finds that Hancock, at the time of his purchase and of receiving his deed, did not know of this prior sale of the waters in question.

In view of the location and physical condition of the property, its history, and the definite specification of the dimensions of the plat conveyed to Hancock, we think it-quite clear that the intention was to convey only the strip of upland, thirty feet wide, lying between the edge of the creek bank and William street, and that the description was not intended to include any part of the waters of Wood creek, or any water-rights therein. Higenbotham v. Stoddard, 72 N. Y., 94. These water-rights had for a great number of years been enjoyed and used by the owners of the mill property on the nbrth, near the mouth of the creek, and it was not until 1875, just before the foreclosure of the mortgage, that any attempt had been made by the occupants of the barn lot to use the water-power, which had become available for the time by reason of the destruction of the old dam, the rebuilding of which by the defendant is the matter complained of by the plaintiff in this action.

Without going into the questions as to the defendant’s title, and without intending to intimate any doubt in respect to it, we think the judgment should be affirmed, with costs.

All concur, except Miller, J., absent.  