Opinion
Argued March 20, 1876
Decided April 11, 1876
E. Thayer for the appellants. Geo. W. Cothran for the respondent.
Whatever may be the rights of the defendants or either of them to maintain a dam upon the site of that originally constructed in 1829 under the grant from Robert Throup and others, then owners of the lands upon which the same was located, their rights are restricted to that particular site. The right and privilege granted to the hydraulic association was to enter upon and take possession of such piece of land at or near a point designated as might be necessarily occupied and covered by a dam or dyke to be there erected by the grantees. Although the lands upon which the privilege was to be exercised, and which were subject to the easement for the benefit of the association, were not described by metes and bounds, when the grantees located and built their dam, the grant became and was as specific in respect to the land to be occupied under the grant as if they had been particularly described in it. From that time neither the grantors nor grantees could, without the consent of the other parties in interest, change the location of the dam. The grant authorized the construction and maintenance of but one dam, and at a single point to be selected within certain limits, and gave no right to the grantees to change the location after having once made the selection and constructed their dam. ( Fitzhugh v. Raymond, 49 Barb., 645; Bannon v. Angier, 2 Allen, 128; Jennison v. Walker, 11 Gray, 423; Jones v. Percival, 5 Pick., 485; 3 Com. Dig., Chimin [D., 5]; Wynkoop v. Burger, 12 J.R., 222.) The attempt of the defendants to erect a dam upon the premises of the plaintiff and upon a site distant from that of the original dam was entirely unauthorized.
I see no reason to doubt that the sale by virtue of the judgment and execution against the hydraulic association gave to the purchasers at such sale all the interest of the association in the dam and the land covered by it. The estate and interest of the association in real property, whether a mere easement or a right of possession or title in fee, was the subject of a sale as property distinguished from the incorporeal franchise of the company under the act of incorporation. ( Griffin v. Spencer, 6 Hill, 525; Goodrich v. Burbank, 12 Allen, 459; Angell on Water-courses, § 143.) The purchaser could devote the property to any uses to which it might be appropriated under the grant. The case does not show that the individual defendants, Jacob and Franklin Getz, have succeeded to the rights of the purchasers at the sheriff's sale, and as the hydraulic association have been divested of all their property in the dam and land upon which it was located, it follows upon the case made that there was no right established in the defendants to maintain the dam upon the original site.
The judgment must be affirmed.
All concur.
Judgment affirmed.