
    Benjamin F. Hazleton, Appellant, v. Ellis Webster and Others, Respondents.
    
      Action to restrain ice cutting injurious to a mill property upon the outlet of a lake — title of riparian owners upon a non-navigable lake—acts of parties giving'a practical construction to an agreement—consideration therefor—reasonable me of the waters of a lake in cutting ice from, it—estoppel.
    
    The • owners of a mill lot," situated upon the outlet of an inland, non-navigable lake, not being themselves riparian owners, obtained from the riparian owners of lands upon such lake grants which permitted the mill lot owners, who had raised the height of their dam upon the outlet, to flow thereby so much of the lots of the riparian owners “as is now flowed by said dam and to keep the same so flowed” as long as the water is used to propel machinery.
    A subsequent grantee of the-mill lot, finding his supply of water reduced by reason ■ of the ice cut by certain riparian owners upon the lake, brought an action to prevent their continuing to cut the ice, and thereafter, in a settlement of such action, entered into an agreement with them by which he, for a sum to be paid him for each ton of ice cut, conveyed to them a strip of land which adjoined their property and also granted to them the right to out, and released them from any damages arisihg from their cutting, the ice from the lake,- and thereafter such riparian owners, with the apparent acquiescence of the owner of the mill lot, out and removed ice from the lake without any restriction as to quantity.
    
      Held,, that the agreement was a grant and not a mere license;
    That a subsequent'grantee of. the mill lot could not maintain an equitable action, to restrain these riparian owners from cutting the ice..
    
      Quaere, whether the fact that the agreement provided that it should not “ be deemed to grant the exclusive right” to the persons thus cutting ice “ to cut, take and remove ice from said lake,” and that it should not affect the right of the owner of the mill lot to claim damages against any other parties, operated as a limitation upon the estate granted.
    That even were there doubt as to the meaning of the agreement, the acts of the parties gave it a practical construction;
    
      That, moreover, the grantor of the mill lot not being a riparian owner upon the lake,, had no right to the ice.in it, it being the case of an inland and nOn-navigable body of water as.to which the law presumes that a riparian owner owns to the center-; . ■
    That the agreement being under seal, a iwesumption of a consideration arose therefrom, and the further fact that.it here unmistakable evidence of mutuality, and that the instrument was executed iin settlement of a disputed claim;, also afforded an adequate consideration;
    That the riparian.owners, upon-this inland, non-navigáble lake had the right'to ■ use its water and cut its ice, hut that such usé must be -reasonable; and ;must not damage the mill owner located upon the outlet of the lake;
    That by entering into the agreement and- thus compromising their differences with the mill owner, the riparian owners simply admitted that by taking the quantities of ice from the pond which they did, they were making such an unreasonable use or appropriation of its waters as rendered it desirable for them -to buy their peace, and-that the agreement was not such a recognition of-the mill owner’s right to the ice as estopped them from disputing his title thereto.
    Appeal by the plaintiff, Benjamin F. Hazleton, from. a. judgment of the Supreme Court in favor of the defendants, entered in -the office, of the clerk'of the county of Cattaraugus on the 10th day of July,, 1896,. upon the decision of the court, rendered aftpr a trial at. the Cattaraugus Special.Term, dismissing li-is complaint upon the merits.
    The controversy involved in this action arises out of conflicting claims to the ice forming upon.a small body of water in Cattaraugus county commonly known as “ Lime lake.”
    This lake covers an area of about 135 acres. It is fed by subterranean springs; is without current and non-navigable; but its waters are especially pure and for that reason the ice which they produce is;exceedingly valuable and finds a ready market. . -Prior to 1831 a sawmill was erected and a -dam constructed upon what is known as the “mill lot,” which contains about three acres, of land. This lot, which is now owned by the plaintiff,, is located upon the outlet near the north end of the lake, and was- originally owned bv the Holland Land Company, that company being the common source of title of all the lands covered by, and adjacent to, Lime lake.
    In the year 1831 the mill dam was, washed away, in consequence of which the waters of the lake receded to such an extent that they covered only about- one-third of the present area. The ¿following year Belá H, Colgrove and Nathan, Follett, who were then in possession of the mill lot and adjoining premises, rebuilt the • dam, increasing its height two feet above that of the original structure, the effect of which was to raise the water. in the lake about eleven feet.
    Thereafter, and on the 24th day of December, 1834, the Holland Land Company, by an ordinary warranty deed, conveyed a tract of about thirty-three acres of land to Bela H. Colgrove, and this tract included the mill lot and the building and dam located thereon, but it did not include, nor did the deed pretend to convey, any portion of .the bed of the lake or of the waters thereof.
    The plaintiff through mesne conveyances finally acquired title to the mill lot and several other small parcels of land adjacent thereto, amounting in all to some seven or eight acres, his immediate predecessor in title being John E. Euchner, who had previously acquired the privilege of flowing the lands adjoining the lake under certain grants executed by the respective riparian owners to Col-grove and Eollett.
    The defendants Webster, Germann and Banks were originally copartners in the business of cutting ice from Lime lake and selling the same in considerable quantities to their customers. In order to carry on this business they became the purchasers of nearly all the lands adjoining Lime lake on its easterly shore, and upon these premises they erected one or more ice houses and such other appurtenances as were necessary for harvesting and storing ice.
    In 1890 John E. Euchner brought an action to restrain the defendants above named from removing ice from the lake. This action, however, was thereafter compromised and settled, and as a result of that settlement the parties thereto, together with Mrs. Euchner, entered into the following written agreement which they executed under their respective hands and seals, viz.:
    “ Articles op Agreement, Made and entered into this 29th day of October, 1890, by and between John E. Euchner and Grace W., his wife, of the town of Machias, in the county of Cattaraugus and State of Hew York, of the first part, and Ellis Webster, Edward H. Webster, William Germann and Levi P. Banks, as and composing the firm of ‘ E. Webster, Son & Co.,’ of the city of Buffalo, county of Erie, State of Hew York, of the second part, Witnesseth:
    
    
      “ For and in consideration of the covenants and agreements hereinafter contained, the said John E. Euchner hereby covenants and agrees'tó sell and convey, and does hereby grant, release and com vey, unto the parties of the second part all of his right, title, and interest to and in the strip of land lying and situate on the easterly side of Lime lake, in the town of Machias, aforesaid, and which is adjacent on the west to the farm owned by the parties of the second • part herein, and also to'permit, grant, release, transfer and assign to them, the said parties of the second part, the unrestricted right, privilege and permission to cut, take and remove from said lake at any time the ice forming thereon,- so far as he is the owner and vested with any title to such ice or right to cut and remove, the same,, and releases to the said parties of the second part hereto any damages that he has sustained.or may hereafter sustain by reason of diminishing, the water supply for his mill at the outlet of said lake, and further covenants and agrees to maintain the dam on his premises at said outlet and which causes the water, in a measure, to accumulate, thus -increasing the quantity of water therein, and also agrees' not to lower the mill race from said lake, or reduce the head of said water-more.than two feet below what it has been maintained and kept "up since his ownership thereof, and the said Grace. W. Euchner joins in the execution of this instrument for-the purpose, of releasing and relinquishing to the parties of the second part her inchoate dower interest in said lands and premises, and does as part consideration hereof release and relinquish such dower interest therein, and the said parties of the first part further agree that, in furtherance of this agreement, and if requested by the parties of the second part, to make the title and rights of the parties of the second part more effectual and secure, will at any time, execute a deed of. conveyance, conformably to this contract conveying to them, the said parties of the second part or their assigns, the said lands and rights in .said ice as aforesaid so far as the said John E. Euchner has the .title and right to, convey the same. ;
    “In consideration whereof, the parties of the second part hereby covenant and agree to and with the said John E. Euchner, ■ his heirs, executors and assigns, to pay him one-half cent .for each ton of ice-hereafter taken by them from said lake. For the purpose of ascertaining and .determining the quantities of ice so taken from time to time, the weights of railroad company or companies at Machias, over whose tracks said ice is shipped, are tobe accepted and received by the parties hereto as the exact amounts so taken. Said ice to be paid for, on such statements, at the said rate of one-half cent per ton annually on the first day of January hereafter. Each of said payments is to cover and include the entire shipments of ice for the year immediately preceding such ¡Dayment. The parties of the second part further agree, as part consideration hereof, that they will, within thirty days from the date hereof, furnish to said Buchner an accurate statement of all the ice shipped by them from said lake since January 1st, 1889, and pay him therefor at the rate aforesaid within said thirty days. This agreement is to bind the heirs, executors, administrators and assigns of all the parties hereto.
    “It is understood and agreed between the parties hereto that nothing herein contained shall he deemed to grant the exclusive right to the parties of the second part to cut, take and remove ice from said lake, nor shall anything herein contained in any way affect any claims or damages which the parties of the first part may have at any time against any persons other than the parties of the second part.
    “ It is further understood and agreed that the grant herein contained of the strip of land above mentioned shall not in any manner affect the existing right of flowage which the parties of the first part have, and that the deed above provided for shall contain a proper clause, reserving such right of flowage to the parties of the first part.
    - “ In witness whereof ’ the parties have hereunto set their hands and seals the day and year above written.”
    This instrument was duly acknowledged by the several parties thereto, and was subsequently recorded in the clerk’s office of Cattaraugus county.
    Thereafter the defendant “E. Webster, Son ,& Co.” was duly organized as a corporation under the laws of this State, and, as such, succeeded to all the right, title and interest'which the former firm had acquired in the lands adjoining the lake, as well as in the ice forming thereon.
    The company thereupon proceeded to enlarge its plant and increase its facilities for harvesting, storing and selling ice, to such an extent .that the present capacity of the plant is about 150,000 tons per season.
    On. the 13th of September,. 1894, Euchner and wife conveyed the mill lot. to the plaintiff, including all the right which they owned, to .flow.the lands adjoining the .lake. But this grant was, by express terms, made subject to the agreement entered into between the grantors .and the defendants. ■
    Intermediate the date of the execution of this agreement and the conveyance to the plaintiff, the defendants cut and removed ice from the lake at different times, and in such quantities as they saw. fit, without objection or remonstrance from Euchner, although the cutting of ice.in such largely increased quantities had a tendency to diminish the' supply of water in the lake, and to some extent, at least, to impair the value of the mill property.
    Soon after acquiring title, the' plaintiff notified the .defendants that-he claimed the ice upon the lake, and that they must-refrain from cutting the same; but as the defendants declined to recognize the validity of the plaintiff’s claim, he brought this .action to enjoin the' defendants from any further interference with bis supposed rights. . -. ' ...
    
      John Houston Merrill and Edwin E. Tait, for the appellant.
    
      August Becker, for the respondents.
   Adams, J.:

The facts of this case, which have been necessarily stated,with considerable detail, are, in- the main, such as were found by the •learned trial court. None, of them has been excepted to by the plaintiff, and they must conséquently, for the purposes of this appeal, be regarded as established. Some additional circumstances were made to appear upon the trial which were probably sufficient to justify the plaintiff in invoking the aid of a court of equity, provided he can maintain his contention that the defendants, in'cutting and removing the ice from Lime lake, were invading his; legal rights, and were, in fact, trespassers.

Proceeding, therefore, to a consideration of the case from, a legal point of- view, we discover that; the plaintiff. rests his contention upon the following propositions, viz.:

(1) That he acquired an absolute and unqualified right of ownership in the ice forming in the lake through the purchase, by his predecessors, of the right to flow the lands of the riparian owners; (2) that the agreement of October 29,1890, was void, because wholly without consideration, and (3) that by accepting and acting under the right or license granted under this agreement, the defendants were estopped from denying the plaintiff’s title to the ice.

As introductory to the examination of these propositions it may be profitable to determine what would be the relative interests of these parties in the subject-matter of the action, if the same were in no wise affected by the respective grants under which each claims the exclusive right to the ice.

To accomplish this it seems only necessary to refer to the fact that the defendants are riparian owners while the plaintiff is not, in consequence of which, Lime lake being an inland and non-navigable body of water, the presumption arises that, unless restricted by some reservation in their deed, the defendants’ title extends to the center of the lake. (Smith v. City of Rochester, 92 N. Y. 463 ; Gouverneur v. The National Ice Co., 134 id. 355 ; Deuterman, v. Gainsborg, 9 App. Div. 151; City of Syracuse v. Stacey, 86 Hun, 441.)

It was not made to appear at the trial, nor do we understand it to be now claimed, that the defendants are in anywise embarrassed by restrictions of the character adverted to, but to repel the presumption existing in their favor, the plaintiff relies mainly, if not entirely, •upon the grants which his - predecessors in title, Colgrove and Follett, obtained from the riparian owners to flow their lands. These grants were executed by different parties and at different times, but in their language they are nearly identical, and there is no difference whatever in their legal import. In short, they convey “ all the light and privilege of .flowing by means of a dam erected at or on the outlet of Lime Lake, so much of lot No.- * * * as is now flowed by said dam, and to keep the same so flowed as long as the water raised by and drawn from said dam is used for the purpose of propelling machinery.”

It is apparent from the language here quoted that the mill owners, in order to propel the machinery of their mill, found it necessary to increase their water power. This could be done only by raising the dam; and the addition of two feet to the height of the dam, of course, raised 'the'water correspondingly in the lake and caused, it to overflow the lands of the adjoining owners. It was consequently to provide against this- contingency, and to protect the mill owners in the enjoyment of their increased facilities, that grants were obtained from the riparian owners of .the right to maintain the dam at its increased height, and to flood the lands of the latter as long as the ' water raised by and drawn from the dam should be used for the ■purpose of propelling the machinery of the mill.

But we fail to see wherein these grants diminished or in any manner affected the rights of the riparian owners in the waters of the lake, or in the ice which formed upon. its surface. ■ For while, strictly speaking, it cannot be said that they ever had any property .in the Waters themselves (Matter of Thompson, 85Hun, 438), their title, nevertheless, covered the bed of the lake, and they consequently had the undoubted right to use the waters thereof and to cut and ir.emove the ice formed thereon, provided this right was exercised reasonably and in such a manner as. not to materially diminish'the ■volume of water .in the lake to the injury of lower proprietors. ■(Marshall v. Peters, 12 How. Pr. 218; Dodge v. Berry, 26 Hun, 246 ; De Baun v. Bean, 29 id. 236; Cummings v. Barrett, 10 Cush. 186; Bigelow v. Shaw, 65 Mich. 344.)

■ It follows, of course, that-if the riparian- owners conveyed no other or greater right than the mere privilege of flowing their lands, the mill owner • obtained no better .proprietary interest in the waters of the lake than he. enjoyed -previous to the execution of the grant, which, as we have seen, was limited to' their use for mill purposes, subject to a.prior, reasonable use thereof by the riparian owners.

The record before us seems to make it quite obvious, however, that the defendants, while carrying on the..ice business as alfifm, took such quantities of ice from the lake as to give, rise to the-complaint that their use of its- waters wks unreasonable, in consequence of which an action was. brought- against them by Euchner, who was then the owner of the mill lot, and it was to compromise and settle this action that- the agreement of October 29,1890, was. entered into.

We are thus brought to a consideration of the effect of this instrument, upon the rights of the respective parties; and in this connection it is to be' observed that, as the plaintiff purchased his property in subjection to whatever rights his grantor had parted with, he occupies precisely the same attitude towards these defendants as would Euchner, if he were still the owner of the property.

An examination of the agreement referred to will disclose the fact that it was evidently designed to accomplish the following objects: (1) To convey to the defendants a small strip of land therein mentioned; (2) to grant to them the unrestricted right, privilege and permission to cut and remove ice from the lake; (3) to release them from all damages which had accrued or which might thereafter be sustained by reason of any interference by them with the water flowing on to the mill lot, and (4) to reserve to the grantors of these rights and privileges compensation therefor upon the basis of one-half cent, for each ton of ice cut and removed.

This agreement appears to have been duly executed. Its language is neither vague nor ambiguous, and we see no reason to doubt its efficiency for the purpose for which it was designed, namely: To confer upon the defendants the right, which they did not theretofore possess, of cutting and removing ice from Lime lake in unlimited quantities, even if in so doing they injured or absolutely destroyed their grantors’ mill privilege, if or is the instrument to be regarded as a mere license. On the contrary, it is in effect what we have repeatedly termed it, a grant, and the mill owner’s rights in the waters of the lake, whatever they may have been, were distinct and substantive subjects of a grant. (Goold on Waters, § 304 ; Hall v. Sterling I. & R. Co., 148 N. Y. 432.)

It is contended, however, that the clause in this agreement which provides that nothing therein contained shall be deemed to grant the exclusive right to the defendants to cut and remove ice from the lake must be regarded as a limitation upon the estate granted, and an elaborate argument is entered upon to sustain this contention upon the one hand, while upon the other it is insisted with no little ingenuity and a quite liberal' citation of authority that the clause referred to should be treated as the habendum, and that, consequently, within well-settled rules of construction, it must yield to the granting clause.

In the view which we take of the case this question, however interesting its examination might prove, is really of little or no importance. For, as we have seen, the plaintiff has no interest in the corpus of the ice, and as to these defendants, he no longer has any interest in the quantity taken by them. It, therefore, does not concern him whether the defendants claim an exclusive or an unrestricted right to the ice. It rather concerns the other riparian owners, who, so far as appears, do not dispute the defendants’ claim, whatever it may be.

But even if we entertain any doubt as to the correctness -of the views we have expressed respecting the relative rights of the parties under this instrument, that doubt would be resolved by the fact that the instrument has received a practical construction at the hands of the parties themselves. For it is not denied, that, after obtaining this grant, the defendants proceeded to cut and remove ice without the slightest restriction as to quantity; and this, it seems, was done with the apparent .acquiescence of their grantor Euchner.

This certainly shows the understanding which the parties entertained respecting the terms of the agreement and it should relieve that instrument of whatever uncertainty it may possess. (Dodge v. Zimmer, 110 N. Y. 43 ; Woolsey v. Funke, 121 id. 87; McClanathan v. Friedel, 85 Hun, 175.)

With the principal question in the case thus • disposed of, it becomes necessary to determine what virtue there is in the plaintiff’s remaining propositions.

We must confess our inability.to perceive upon what .theory it is urged that the agreement which we have had under consideration is void for want of consideration, for it is conceded that it Was under seal; and this of itself was, at common law, conclusive evidence of a sufficient consideration, although Under our present system it simply raises a presumption of that fact. (Torry v. Black, 58 N. Y. 190; Code Civ. Proc. § 840.) But in addition to the presumption thus created, the instrument, upon its face, bears unmistakable evidence of mutuality, and it expressly recites that, in consideration of the rights and privileges thereby granted to the defendants, they will pay to their grantor Euchner, his heirs, executors and assigns, one-half cent for each ton of ice thereafter taken by them from the lake. This covenant it appears that the defendants fulfilled, for Euchner testifies that they paid him from $100 to $135 per season under this contract.

It would seem, therefore,, that, not only was there a consideration for the grant, but that the same was adequate and satisfactory to the plaintiff’s grantor.

Moreover the instrument was executed in settlement of a disputed claim, and this fact alone would furnish sufficient evidence of -a consideration to uphold it. (Seaman v. Seaman, 12 Wend. 381; Feeter v. Weber, 78 N. Y. 334; Rector, etc., v. Teed, 120 id. 583.)

The plaintiff’s last .contention is that the execution and acceptance of the agreement of October 29, 1890, was a recognition by the defendants of Euchner’s right to the ice, which estops them from now disputing the jdaintiff’s claim of title thereto. We do not so regard it.. It. is true that, by this instrument the grantor released to the defendants whatever right, title or interest he had in and to the ice in the lake, but, manifestly, its main purpose was to furnish him adequate, compensation for the damage which, he. had already sustained, or which might thereafter result from diminishing the amount of water to which he was entitled for milling purposes. This right, as we have attempted to show, was one which the riparian owners could not interfere with by an' unreasonable use of the water in the lake; and by entering into the agreement and thus compromising their differences, the defendants, in out view of the matter, simply admitted that, by taking the quantities of ice from the lake which they did, they were making such an unreasonable use or appropriation of its waters as rendered it desirable for them to buy their peace.

Upon a careful review of-the entire case, we are persuaded that a proper disposition was made of it at the trial, and that the judgment appealed from should, therefore, be affirmed.

All concurred, except Follett, J., not sitting.

Judgment affirmed, with costs.  