
    Brada et al. v. Hosmer et al.
    (Decided February 6, 1931.)
    
      Mr. W. R. Davis and Miss Mildred M. Thrasher, for plaintiffs.
    
      Messrs. BostwicJc & BostwicJc, for defendants.
   Richards, J.

This action was brought for the purpose of quieting title of plaintiffs to two tracts of land, consisting of about 20% acres, situated in Geauga county. The defendants set up a claim to some of the land and to an easement for mill and water rights purposes.

The argument in this case has taken a wide range, but the rights of the parties can be readily determined from the written instruments which are in evidence.

The plaintiffs in their petition describe the land which they own, and set forth after that the following :

“Excepting and reserving any portion of the above described land conveyed by Hezekiah Hubbard to Amasa Carleton and Asa Carleton by deed dated June 16, 1846, and recorded Volume 42, page 130 of Records of Deeds of Geauga County.”

It will be noticed that the plaintiffs are claiming absolutely the entire land described, except such as may be embraced in the instrument to which they make reference. The instrument to which they refer is admitted in evidence. It was made on the printed form of a blank deed, describing the tract as being in Geauga county, and “being part of Lot Number eight six of the original survey of said township, and is bounded as follows: Beginning in the bed of the creek called Rocky Run where the same crosses the lines between said Hezekiah Hubbard and James Peffers, running thence north on said land 4 rods; thence west 44 rods; with the privilege of building a mill dam from bank to bank of said mill creek and abutting the same upon said banks at any place on said 44 rods and flowing the water in said creek as high as possible so as not to flow over the line upon the land of said Peffers. And also the privilege of cutting a race in or on the south bank to the highway for the purpose of carrying the water to the mill; with the full privilege of going to and from for the purpose of building or repairing the said dam and race, and all necessary purposes, and of taking gravel out of the banks for building or repairing the same, and any portion of said premises within said boundaries when not occupied by said dam or pond or for tbe purpose of building or repairing tbe same said Hubbard may occupy tbe same. ’ ’

The defendants contend that this instrument conveys land, but we cannot accede to that view. It describes no land, as the description consists solely of a line 4 rods long and another line at right angles thereto 44 rods in length. The manifest purpose of the instrument was to create an easement for the purpose of a dam and for carrying water to a mill. Immediately north of the line described is a pond or small lake, of irregular shape, situated near the center of the land owned by the plaintiffs. The mill itself was located just west of plaintiffs’ land and seems to have been used for a. long time after the execution of the instrument from which quotation has just been made; but no mill has been operated there for ten or fifteen years, and the pleadings admit that there has been in fact no mill on the property for many years. A situation is thus created which is quite like that shown by a report to Congress made long ago by a committee sent to investigate whether a mill had been erected for a tribe of Indians. Like that report, the evidence in this case shows a dam by a mill site, but no mill by a dam site.

This court is of the opinion that the plaintiffs are the owners of the real estate described in the petition, but that their ownership is subject to an easement in the defendant Julia V. Fuzy, who is the successor to the rights of the original owners in the easement.

The court finds that the plaintiffs are entitled to have their title quieted subject to the right of Julia V. Fuzy in the milldam and millrace in accordance with the terms of the easement herein quoted. Those rights are to. inhere in her and all persons claiming through or under her, being successors to the title of said Amasa Carleton and Asa Carleton.

A decree will therefore be entered for the plaintiffs, but subject to the right of said Julia Y. Fuzy and her successors in said easement.

Decree accordingly.

Farr and Williams, JJ., concur.

Judges Williams and Richards, of the Sixth Appellate District, sitting by designation in the Seventh Appellate District.  