
    John Kilgore v. Herman E. Hascall, Administrator of Caroline A. Hascall.
    
      Deed: Construction of covenants: License: Mowage rights. The plaintiff-grantor of a mill site — covenanted in the same deed, that the grantee might build a dam and mill-race upon plaintiff’s land, and enter for repairs, subject to the proviso that the grantee should not flow back beyond a specified point. The grantee built the dam further down tlie stream, and not on his grantor’s land; and for fiowage thus' caused, which was not beyond the point specified in the deed, the plaintiff brought his actionHeld, that the right to flow was not inseparable from the right to build the dam; and that the grantor bad no just cause of complaint, because the grantee h¿id availed himself of a part only of the rights granted by the deed.
    
      Heard October 7.
    
    
      Decided October 11,
    
    Error to Kalamazoo Circuit.
    This was an action on the case brought by John Kilgore in the Circuit Court for the County of Kalamazoo, against Caroline A. Hascall, for damages resulting from the erection by defendant of a dam across the stream called “ Big Portage,” below and down the said stream or water course, and below the premises of said plaintiff, and thereby obstructing the natural flow of said stream of water, and preventing the said stream from running through the said premises of the plaintiff as it before that time was accustomed to do, and would have done, had it not been obstructed and hindered by the dam aforesaid, but on account of and by reason of said dam, said stream flowed over its banks and upon the lands and premises above described of said plaintiff, and thereby the said defendants wholly deprived said plaintiff of the use of a large portion, to wit: fifteen acres of his said land, etc.
    The defendant pleaded the general issue. The death of defendant and the appointment of Herman E. Hascall as her administrator, are suggested on the record.
    On the trial, the defendant showed a conveyance by the plaintiff to one Deborah B. Allcott, under whom defendant claims, of a mill site, with certain ffowage rights, which, with the charge of the Court below thereon, are set forth in the opinion of the Court. Under the charge of the Circuit Judge, the jury found a verdict for the defendant; and the judgment entered thereon the plaintiff brings into this Court by writ of error.
    
      Thos. C. Gutter, for plaintiff in error.
    
      May & Buck, for defendant in error.
   Campbell, Ch. J.

Plaintiff, Kilgore, brought suit against defendant’s intestate, Caroline A. Hascall, for flowing certain of his lands by means of a dam on a parcel of land further down the stream. The defence justified under a deed from Kilgore which was claimed to authorize the flowage.

Kilgore owned so much of the southeast quarter of section thirty-four, town two south, of range eleven west as lay west of the Kalamazoo and Three Bivers plank road. A stream called Portage Creek ran northerly through these lands, and a branch called the Little Portage flowed easterly through the same tract from near the southwesterly corner, and joined Portage Creek on the premises and near the plank road. One Johnson owned land north of Kilgore and east of the creek. In March, 1864, Kilgore conveyed to Deborah B. Allcott a mill site and water privilege on the Little Portage, which does not come in controversy here, and also certain other rights which were granted in the following language: "Also the same right and privilege to erect a dam at or below the entrance of the Small Portage into the Big Portage aforesaid, and carry the water by a race to where the Portage leaves the land of the grantor, or take the same to the line of land owned by Johnson, and across the said Johnson’s land, if she can obtain the right to do so; also, hereby conveying the right and privilege to make said races, dams, gates, and necessary appurtenances thereto, on, across, and through the land of the grantors, of such width and depth as she, said Alcott, shall deem best, with the like right and privilege now and at all times hereafter to enter upon said southeast quarter when said dams and races are to be or may be built, for the purpose of keeping the same in repair and free from obstructions; and the same right and privilege is hereby given and granted to take earth from the bank of said above described land (southeast quarter), adjacent or near as practicable, when necessary for the purpose of making and keeping said dams' and races in repair by herself or others, but no right is hereby given or granted to flow back the water on the Little Portage further than the north bank of the same, — such dam or dams, races and conducts of water to be made and used for the purpose of waterpower.” The previous description had mentioned dams, gates, and head and tail races, in connection with the other water-power supplied from the Little Portage to the mill on the site granted in that description.

The dam which caused the flowage complained of was built on the Big Portage, considerably further down stream than Kilgore’s north line, and set the water back, but not beyond or up to the north bank of the Little Portage, and there was no race or other work connected with it built on Kilgore’s latid. Plaintiff claimed that there was no right to flow his land unless the dam and races were also built upon it. But the Court held that if the flowing was not unnecessary, and was no greater than would have been caused by building the dam and race on plaintiff’s land, the deed authorized it; that the conveyance was intended to grant a water-power to which the dam and race were mere incidents, and she was not compelled to use all of the privileges granted in connection with the power unless she chose, but might erect the dam on her own premise® instead of plaintiff’s if she saw fit.

The rulings were correct. The dam and race, if built upon plaintiff’s land, would have been of no service to him,, but were only designed to make the water-power available-If the power could be used without imposing this burden on his lands, and without causing any greater overflow, it is manifest that he would, to that extent, be the gainer, and the defendant would only be using a part instead of the whole of the privileges granted. Undoubtedly if the privileges had been granted upon condition that all or none should be used, it would have been competent to make such a stipulation. But such a design cannot be inferred unless the deed requires such an inference. And no such design can be detected in this conveyance. It is very manifest that Mrs. Allcott was only securing the right to use the power which would be furnished by raising the water to the north bank of the Little Portage. It is also manifest that the mill was not to be built on Kilgore’s land, and that if a race was built it might become desirable to cross Johnson’s land with it, so as to reach a point quite a distance down the stream; or in other words it was not supposed or contemplated that the fall on plaintiff’s land alone was enough to furnish the power needed. The dam, under the deed, could be built anywhere on Kilgore’s land between the Little Portage and his north line, and if built at the latter point, of course the race, if any, would be further down on the land lying north. By building the dam further down she did not cause the water to flow back as far as she was entitled to under the grant; and under the charge given, the jury found that the land overflowed was no more than she would have overflowed under any circumstances. The effect of the plaintiff’s complaint is to claim damages because his land has not been injured as much as his grantee had a right to injure it, and because she had not availed herself of all the rights which he had given her. As we find nothing in the deed requiring her to do all of those things which she had a right to do, we are compelled to concur with the Court below, in holding that he has been no more damaged in law than in fact.

The judgment below must be affirmed with costs.

The other Justices concurred.  