
    John I. Lawrence, App’lt, v. James W. Whitney, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    1. Water rights — Riparian owners.
    Plaintiffs claimed 19-85 of the water power of the Genesee river at Rochester, oh the ground that their predecessors had lawfully and perpetually diverted that amount to the west side through‘.‘Brown’s race," under an agreement dividing the use of such power among themselves, so that such a conveyance of lots on the west side with their water rights .carried the power diverted from the east side without further conveyance, Meld, that the fact that some of the owners of the property and water privileges on the west side became the owners of land on the east side did not have the effect to make the right to the use of the water east of the thread of the stream appurtenant to their land on tile west side. Nor would a conveyance of land on the east side by an owner on both sides, excepting the right to use of water of the river, have that effect.
    2. Same.
    The water power of the east side lots was a part of the land which could not be severed from the remaining part except by deed, and no such deed working a severance was made.
    8. Same.
    Bach west side, proprietor owned also his proportion of east side power, by force of his title to the east side lots, and had covenanted to use his east side power on the west side; but if he sold his east side land to one not bound by the covenant, the grantee was free to restore the use of power to the land purchased and to which it belonged.
    '4. Same.
    Pwners, in severalty, on one side of a stream, possessing water lots in common on the other side, cannot have an easement in their own lands on the other side, nor can a covenant for use run with lands not at the same time granted or conveyed.
    Appeal from judgment of general term, fifth department, affirming judgment of trial term in favor of defendant.
    
      William F. Coggswell, for app’lt; Martin W. Cooke, for resp’t.
    
      
       Affirming 9 N. Y. State Rep,, 889.
    
   Finch, J.

The controversy between these parties respects their relative rights to the use of the water of the Genesee river, as power to drive their mills. A dam. has been constructed across the river above the falls, and the waters retained by it pass through guard gates on each side, and reach the mills through a race on the east bank of the river, and through what is called Brown’s race on the west side; and the plaintiffs, who are a part of the proprietors drawing their water power from the latter race, claim, to be entitled to the use of seventy-nine eighty fifths of the water of the river, leaving to the owners on the east side only six eighty-fifths of the power stored by the dam. The fundamental proposition, upon which this claim rests, is that the predecessors of the plaintiffs, who were at the time west side owners, with mills located upon Brown’s race, lawfully and perpetually diverted from the water lots on the east side of the river, and attached to the lots on Brown’s race, the whole water right primarily belonging to the east side, except six eighty-fifths, and did this in such manner and so effectually that such added right became an integral part of the west side right belonging or appurtenant to the lots on Brown’s race, so that a conveyance of those lots, with their water right, carried to the successive grantees the power diverted from the east side, without further conveyance or specification. An examination of this claim has required in the court below, and demands of us, a construction of the deeds and contracts upon which the plaintiffs rely, and an understanding of the titles on both sides of the river.

The common source of title seems to have been Moses Atwater, whose ownership extended along both shores, and covered the whole river. His right to the water followed from his title to the bed of the stream. It was not an appurtenance to the land of the shores, but, in a legal sense, part of the land itself, and was embraced within the actual metes and bounds of his ownership. Of course this right of his was qualified by the character of the. property so far as it consisted of a flowing steam. He was bound to deliver it at its proper level where it left his land to the proprietors below, and to use it without injury to those above But, subject to these limitations, he had not an appurtenance to the lots on the banks, but the river itself considered as power by force of the ownership of its bed.

We may now follow his conveyances on the east side. He be-' gan by a survey of the land, and caused a map to be made, known as Hudson’s map, which was filed in the clerk’s office, and with reference to which Ms deeds were made.

In the year 1819, and before the survey, Atwater had conveyed to Cleveland and Andrews what became by the map lot 16, which was separated from the brink of the falls only by a single lot, known as lot 15, which was afterward washed away, and has substantially disappeared. TMs conveyance was by metes and bounds, and. included no part of the bed of the river. There was, however, upon the lot a grist mill, and with the land was granted a right to draw sufficient water from a race on the Atwater tract to supply that mill. The water right of the grantees, therefore, was simply an easement; a burden upon the ownership of Atwater, for their benefit, and which was balanced by some rights of way and of occupation reserved to the grantor. The scope and extent of the Cleveland right appears to have been determined by the vice-chancellor in Gibbs v. Whitney, and was held to be measured by the necessities of the grist mill as it stood in 1819, so that the grantees took a right to enough of the water to propel the machinery of the mill as it then existed, or any other equivalent machinery.

In 1821, Atwater conveyed to William P. Shearman what was marked on the map of Hudson as lots B., 17 and 15. These are described in the deed as water lots,” and were bounded by the river. They extended to the thread of the stream and ran to its center; vesting in the grantee the bed of the river to that extent, and carrying with it as part of the land conveyed the flow of the water above. Prior to this deed, Atwater, as owner on both sides, could have used all the water on either side, subject only to-the Cleveland easement. ■ After this deed he could no longer do so, for Shearman, as owner of lots on the east side, was entitled to have the river flow over them in its natural manner and to the water power which that flow involved. His rights in lot B. subsequently vested in the Wards, and those in lot 17 passed to Parsons. Lot 15, as we have said, fell before the grind of the river.

The balance of the east side lots above the falls and below the dam were sold by Atwater to Bissell, under a description which made the river their western boundary and so carried that line to. the center of the. stream. Bissell conveyed an undivided half to ■Hills in 1829, and by a deed of his heirs the other half went to Lily in 1832. The next year an agreement was made between Ely, on the one hand, and the then proprietors of the lots on Brown's race, whom we designate for convenience as the first group of west side owners, including also one Reynolds, who had become the owner of the Cleveland lot numbered 16, and the ■easement attached. Tins agreement is one of those upon which the plaintiffs rely, and marks the beginning of an effort by the west side owners to divert all, or nearly all, the water of the river to their own mills.

That agreement begins by reciting the several proportions in which the west side owners are entitled in severalty to the use of the water in Brown’s race, aggregating in all sufficient for sixty-two run of stones. It then specifies the ownership of Reynolds in lot 16 on the east side, and recites that there are other owners on- Brown’s race ¡who have not joined in the arrangement. It next declares that the parties of the first part have purchased of Ely his interest and .that he has conveyed the same to Erastus T. Smith, Warham Whitney and Edmund Lyon, who confess that they take the title ■as trustees for' the whole group of purchasers. .The agreement ¡specifies the manner of payment to Ely and shows- that each pur- ' chaser in the group paid of the purchase money precisely such ¡proportion as corresponded with the extent of his water power on ¡Brown’s race. The contract declares the object of the purchase to be to prevent “ as far forth as they can ” the use of the water on the lands purchased, and to get for themselves such use of what was described as “ surplus water,” and to be able to maintain the existing dam or construct a new one. After these recitals it fixes formally the terms of the agreement between the purchasers for the use and management of their purchase. Briefly stated, these are first, that each shall be entitled to use for his own purposes his proportion of the water belonging to the new purchase through Brown’s race, and that such shall be a perpetual right ; second, that if it becomes necessary in order to prevent a use of the water on the lots purchased by the other owners thereof, the new grantees will put machinery upon such lots propelled by their adjacent water-power and share the profits in the specified proportions; third, that any proprietor failing to pay his share of the purchase shall forfeit his right in the land, and that may be sold and its proceeds divided; fourth, that if the primary purpose of the purchase shall not be realized, then again the land shall be sold and the proceeds divided. There are still other provisions of which the ninth only needs to be recalled. That preserved to each purchaser all his existing rights of every kind totally unaffected by the agreement.

I think it is not difficult to see what was the real scope and meaning of this contract as between the several members of the purchasing group. It was an agreement among purchasers dictating by personal covenants the manner of using the property purchased. Ho one owner conveyed or granted any land or any easement in land to his associates or any of them. The property bought and held in common was bought for the water-power upon it and that power was to be used on the west side and severed in due proportion so that each could use his own, in the event that the general purpose should be realized. Since each could not use his own upon the west side unless all agreed to that use, therefore all did agree, and what each man got hy the agreement was the covenants of the associates to use their shares on.the west side so that he could use his at the same point There was thus no grant or transfer of anything from one to another, and as a necessary consequence the covenants for use did not run with the land, and remained personal. An illustration of this truth is furnished by the case of Hurd v. Curtis, 19 Pick., 459, 464, where the respective paaties, owning independent estates, entered into covenants with each other as to the kinds of wheels they should respectively use in their several mills. A grantee of one party sued for breach of the covenant and was defeated. The court held that the estates were several, and “ there whs no grant of any interest in the real estate of either party to which the covenant could be annexed.” In the present case the water-right, bought in common, was carefully severed, considered as power; to each owner was assigned his due proportion; and each agreed to use what was his own for his own benefit, but at a particular place. Ho one party conveyed to any other party the slightest interest in his several and independent estate on Brown’s race, and so the covenant for use could not run with the respective west side lots. No easement was created, for that implies a burden put upon the land of one person for the benefit of another. Here the west side owners agreed to divert their own water, held in common, from their own land held in common, to their own use elsewhere in specified proportions. The water was to be diverted in one volume as a physical fact, through the agency of a dam thrown entirely across the river, but the rights in the water considered as power were made separate and independent. The covenants, therefore, were the personal covenants of owners in common for the use of their property, held in common at a specified point, and in the exact proportion of their several ownership, and bound no grantee of any party unless they were specifically imposed upon or assumed by the grantee. I do not see how such a contract could work the result of stripping the east side land of its natural water right as against grantees buying on that side to the thread of the stream, and of attaching it to the west side lots as a part of those titles.

Beyond that consideration, I think, no such result was contemplated. The agreement indicates, in two emergencies, a purpose to sell the lots as they existed and without change, and recognizes the impossibility, at that date, of effecting the desired result, and in that event distinctly provides for mills on the east side to be driven by that half of the river, and so for a use of the water in its normal and natural way. The power of the east half is denominated, with reference to its use on the west side, as surplus water,” by which phrase was evidently meant water not belonging or appertaining to the west side, but a surplus ” over itnd above and beyond that. '

It is further to be observed that the rights of the owners on Brown’s race, as they existed at the date of the contract by express stipulation, were not to be altered or changed, defeated or impaired by the operation of the contract itself. This seems to me a decisive indication of a purpose to obtain and control a new ■and separate water privilege, and not to enlarge and extend, and so alter and change an old one. In almost every point of view, therefore, it seems to be reasonably certain that the contract of 1838 was a personal covenant which worked no change in title or ownership, and fell far short of a severance from the east side land of its natural w;ater right, and a transfer of that as an easement or appurtenance to the west side lots.

’ But this contract does not disclose the full strength of plaintiffs’ case. Two years after its execution the remaining undivided* half of the Bissell purchase which had passed from him to Hills vested in Everard Peck, who sold his interest to Silas O. Smith and his associates. Whether these were the same identical persons who constituted the first group of Brown’s race proprietors I do not know, and it may not be necessary to ascertain, but they were certainly west side owners, and may be identified as the second group. So far as they were identical, the Bissell lots and rights had passed to them entirely; one-half from Ely and one-half from Peck, for the attempted trust failing, the title went to the beneficiaries. The contract with Peck is not in evidence, but proved by recitals. The purchase from him is found as .a fact. The deed given by his heirs to the defendant, Whitney, passed nothing but the naked legal title. The beneficial ownership went to the second group of Brown’s race proprietors. Assuming the identity of the two groups, the whole Bissell right was vested in them, and the purchase from Peck advanced them one stage further towards the possibility of diverting the east side water into Brown’s race, but without changing their relations to each other, or depriving the east side lots of the water which formed a part of them as against future grantees to the center of the river who had assumed none of the covenants of the contract of 1833.

But there still remained the hostile rights belonging to lots B, 16 and 17. In 1855 Cornelius Parsons had become the owner of lot 17, and in June of that year conveyed it and all' its water rights to a third group of Brown’s race proprietors. These latter were different persons from those in the first group, but were their successors in the ownership of the property on Brown’s race and claimed to be owners of shares in the surplus waters described in the contract of 1833.

That deed contains two important provisions, and especially so because the defendant, Whitney, was one of the grantees. It recites that he jointly, with Andrews and Rochester, owned two parts and a fraction of the power in Brown’s race, and that the .aim of the purchase is “ so far as may be practicable ” to increase the flow of water in Brown’s race, the water rights of which were held by the owners in severalty, and the group of purchasers covenant with each other that no one of them, his heirs or assigns, “will sell or dispose of his or their interest in the said premises, except to the successor of such party in the ownership of the water lot or water lots now owned by such party on said Brown’s race, without the consent ” of two-thirds of the owners, the intention being that the ownership of a share in the property bought “ shall be connected with and annexed so far as practicable to the ownership of a like share in the water of said Brown’s race.” By this deed, the defendant, Whitney, is shown to have become a west side owner. If at that date he was also an east side owner, he could use his power on either shore except as against his own •covenant. But he made an express covenant in the deed, and in the face of that no broader one could be implied, and if it could be nothing more than that his share of the power belonging to' lot 17 should be added, by an appropriate increase of water flow, to the power of Brown’s race, and be used or held by him on that race. The covenant, if implied, would relate solely to the use of his share of the power bought with lot 17, and extended to nothing else. The second thing made obvious by this deed is that the third group of Brown’s race proprietors were conscious of and understood the fact that the water right of the east side still belonged to the lots on that side as a right, if those lots, running to the ■center of the river, were so conveyed to a stranger not a party to the existing arrangement for use. That fact was recognized as an inherent defect in the scheme of diversion, for it was sought to be remedied by a mutual covenant of the purchasers that no one of them would sell to any person not the owner or successor of an owner of the power in Brown’s race without the consent in writing of two-thirds of the owners. The aim of this covenant was to prevent the power of lot 17 from vesting anywhere except in one interested in Brown’s race who would, for that reason, be unlikely to use it elsewhere; but it did not bar a Brown’s race owner, who was also an east side owner, from buying the shares of his associates in the power of lot 17, and then using it on the east side. He would not violate their covenants by so doing, and had made none for himself, except as to the sale of his own original share.

We come now to what is known as the Ward contract. The appellants say, in their brief, that lots B and 16 were owned nominally by William H. and Joseph B. Ward, but in fact by the former alone. Assuming that to be true, the contract of 1866 settled the measure of power pertaining to those lots. Lot 16 was the Cleveland lot, with its easement, which had passed through Reynolds, who signed the agreement of 1838, and had come down to Ward. Lot B, according to Hudson’s map, stood nearly midway between the falls on the north and the entrance of the east side race into the waters stored bytlre dam. * It stood astride of that race and ran to the center of the river. It had upon it a saw mill driven by water from the race. Dispute had arisen between Ward and the Brown’s race owners as to his use of the water, and to settle that dispute the contract of 1866 was made. The west side owners, as a group, constituted the party of the first part, and they, in the aggregate as one person, contracted with Ward. They were the fourth group of Brown’s race proprietors, and great changes had taken place among them. Thirteen names in the third group are absent from the fourth and fifteen new names take their places. Among them, however, remained the defendant Whitney. The agreement recites the ownership of the parties, the ground of dispute and that the rights of the parties of the first part among themselves to the waters of the river had been fixed by a decree of the supreme court in 1854 at seventy-nine parts, each part representing the power necessary to drive one run of stone. It states the object of the contract to be an apportionment of the waters of the river as between the Brown’s race owners aggregated and Ward, and contains an explicit provision that the rights and interests of the former between themselves are in no manner to be affected by the agreement. It then estimates the water power of the river pertaining to the several lots specified at eighty-five parts, each sufficient for a single run of stone, and gives to W ard six eighty-fifths. Its sole effect is to limit the right of Ward as owner of lots B and 16 to the prescribed quantity of power.

The appellants claim for it a much wider office and effect. They treat it as an admission by Whitney that the power of the whole river was represented by eighty-five parts or a force sufficient to drive eighty-five runs of stone and that seventy-nine of these parts belonged to the then proprietors of Brown’s race. Such are not its terms. It stipulates that the water and water-rights of the river, “ appertaining to or connected with the lots and premises herein above mentioned,” shall be so represented. Those lots were the Brown’s race lots on the west side and lots 17, B and 16 on the east side. It is only by assuming what we cannot admit, that the water-power of the other east side lots had been stripped from them and attached to the west side lots that the division and apportionment could be made to extend to all lots on both sides of the river. On the contrary the contract explicitly admits that no such transfer had been or was to be accomplished as to lot 17 on the east side, for while providing for a shaft to be placed by Ward over or through that lot it specifies that he shall not interfere with “ the water or water-rights to which the same is entitled.” This contract with Ward was after, the deed from Parsons and shows that in the contemplation of all parties lot 17 had not been denuded of its water-rights and retained them and rendered necessary a special covenant for their protection. It is observable, also, that there is nowhere in this agreement any trace of a covenant or the admission of a covenant for the exclusive use of the seventy-nine parts on the west side or for the diversion of any east side water to the west side. The whole scope of the contract is to limit Ward’s right to draw. And that view is enforced by the special provision that the rights of the Brown’s race owners between themselves were not to be in any manner affected by the agreement-. It is argued that this provision is rather formal than otherwise, but it seems to me entirely in harmony with the purpose to settle or affect no rights of the parties of the first part among themselves, but simply as against them to limit the amount of water to be drawn on the east side by Ward. For this purpose and this only the clause of release was drawn. The Brown’s race owners released to Ward any right which they might have to reduce his supply below the stipulated six parts, and he released to them any right he might possess to draw in excess of that amount.

It is said that Whitney had no water right on the east side at the date of this agreement. I do not feel sure about that, but deem the inquiry immaterial for any present purpose. At least he had not incapacitated himself, either by accepting the Parsons’ deed or by the contract with Ward, from acquiring the east side rights which it is found that he did possess.

Pausing at this point, let us see what had been accomplished. The dam across the river has received everybody’s assent, and become a fixed fact. As a consequence, all the water power of each and every lot on both sides running to the thread of the stream was stored in the dam and distributed therefrom, each lot having its due share as part and parcel of the land itself. A division of that power was possible. The whole power of both sides was agreed to be not less than eighty-five parts, each representing one run of stone. One-half, or forty-two and a half parts, at least, belonged to each side as parcel of the water lots running to the center of the river. The Brown’s race owners, in different and consecutive groups, bought all of the east side lots and the power belonging to them, except Ward’s B and sixteen, which were assigned six eighty-fifths. The new owners could use the east side power on the west side, and by personal covenants agreed to do so; but the east side power remained a part of the east side-lots wherever it was used. It was by force of that fact that the new purchasers got it, and it was not detached or severed by any grant or conveyance. It remained a part of the land, would pass' by a deed of the land, and could be used as the purchaser pleased, if he had made no covenant for its use or assumed the obligation of none.

The general term reached this conclusion. They said: “ The fact that some of the owners, more or less, of the property and water privileges on Brown’s race, became and were the owners of land on the opposite side of the river, did not have the effect to make the right to the use of the water oast of the thread of the stream appurtenant to their land on the ■'rest side, nor would such, be the effect of a conveyance of the land on the east side by an owner of it on both sides, excepting and reserving from the grant, the right to the use of the water of the river.”

The learned counsel for the appellant says, as a comment, “all that I concede; but it is not this case.” He then argues that the result is changed when there is superadded to the ownership on both sides the agreements for use on the west side, and the force of the partition decree, to which I shall hereafter refer. My answer to that criticism has already been made and perhaps may be repeated in a somewhat different form. The water power of the east side lots was a part of the land; such part of the land could not be severed from the other and remaining part, except by deed; no such deed working a severance was made; what was done was merely a personal agreement of the owners to use a part of their property capable of physical transfer on the west side; but it continued to be an integral part of the east side water lots. Each west side proprietor owned also his proportion of east side power, by force of his title to the east side lots, and had covenanted to use his east side power on the west side; but if he sold his east side land to one not bound by the covenant, the grantee was free to restore the use of power to the land purchased and to which it belonged.

The question next arises whether Whitney became such grantee, and involves the transfers of land and water rights on both sides, and the alleged estoppels asserted against Whitney by the appellants. We have seen that the Bissell purchase, which was lots 0, D, 18 and A, became vested in the first group of Brown’s race proprietors. Their deeds of west side lots on that race, with the water rights thereunto belonging, would convey none of the “ surplus ” or east side water, unless by some added and specific grant of that right, or of the east side land of which, as matter of law, it formed a part. The present plaintiffs are the successors of the first group of west side owners, as to the west side lots, but do not, as I understand the facts, claim to have any separate or specific grant of the east side water except by force of their west side grants. In the view I have taken of the case, they are not, owners of the water right belonging to lots C, D, 18 and A, and that fact alone would seem to be decisive of their claim against Whitney, for they cannot restrain the use, by him, of water which they do not own.

On the other hand, Whitney has become the owner of almost all of the east side lots, and of the water power pertaining to them by force of their extension to the thread of the stream. The findings are that he has become the legal owner of the undivided half which passed from Bissell to Ely, and has acquired the interests of all the purchasers of that half from Ely, except three or four. It is also found that he had obtained the legal title of the Peck half, and was the owner, in fee, of forty-four sixty-eighths of the beneficial interest which passed to the second group of Brown’s race proprietors. The power represented by this ownership he is at liberty to use on the east side, where it belongs, unless in instances where he bought with covenants to the contrary.

It is claimed that he so purchased the eleven shares of Silas C. Smith in the Ely and Peck transfers to the first and second group of Brown’s race proprietors. I suppose those shares were not included in the findings above referred to. ' Smith is not named among those whose rights, under the Ely purchase, Whitney acquired, and such shares may not have been embraced in the forty-four sixty-eighths of the Peck purchase. Those eleven shares passed from Smith to Buell and from Buell to Whitney expressly subject to the agreement of 1833, and with a covenant on the part of the grantees not to use the water power appertaining on the east side. So far Whitney is bound by his covenant, but that affects only the interest bought of Smith and not the defendant’s other ownership.

It is said, however, that he is estopped by a later deed from Smith’s executors. That was made in 1874, and quit-claims Smith’s interest in certain property on Water and St. Paul streets derived from Buell in 1851, excepting and reserving Smith’s right at his death “ to the use of water originally belonging to land on the east side of the river, but transferred and made appurtenant to land on the west side of said river, without prejudice to any rights which the said Whitney now has." I do not see what meaning belongs to the last clause, unless it be that the grantee by accepting the deed with the exception in it as described is not thereby to be prejudiced as to any of his existing rights. The grantors chose their own terms and description of what they reserved. The grantee did not admit the grantor’s title or right to the thing excepted, or the truth or accuracy of its description, but was left with his existing rights unprejudiced and unaffected. I do not think the acceptance of the deed amounts even to an admission.

The other grounds of estoppel alleged relate to lot 17, and are based upon the deed of Parsons and the judgment in Pool v. Connolly, which was founded upon that deed, and the acts of the parties. If that should be conceded, it would affect only the water right appertaining to lot 17, and not alter the necessity of affirming the judgment appealed from. It may be, as the respondent claims, that a partition was sought of the land merely, without the water right of lot 17, and that there was no jurisdiction in the court to adjudge what had become of those water rights by declaring that they had been diverted to the west side lots; but it seems unnecessary to pass on that question. Whitney bought under the decree of partition, and was himself a party to the action, and concededly acquired by that purchase only the land of lot 17, and if he has restored to.it its water power, it has been by some other conveyances than the partition deed.

I have thus sought to explain my own views of this complicated controversy, which are in general accord with those expressed by the trial judge and the general term. I think it will be seen, at least it so seems to me, that there are fundamental difficulties in the way of the appellants’ essential and pivotal proposition asserting the transfer of the water flowing over the east side lots to the titles and ownership of the west side lots. I have been unable to see how owners in severalty on one side of a stream possessing water lots in common on the other side could have an easement in their own lands on the other side; or how a covenant for use could run with lands not at. the same time granted or conveyed. Of course in the confusion of a great multitude of titles, it has not been easy to obtain an accurate mastery of the situation, but its main and essential facts lead me to the conclusion that the case has been correctly decided; and as to the defendants other than Whitney, for the reasons assigned by the general term.

The judgment should be affirmed, with costs.

All concur.  