Opinion
March Term, 1899.
Alpheus Potts, for the appellant.
W.L. Thornton, for the respondent.
The deed from Daniel T. Stevens and wife to William G. Goff, conveying the premises on which the defendant, under authority of the grantee, cut the ice in question, contained the following reservation: "The first party forever reserving the right or use of the land adjoining the pond over which the waters may flow now or hereafter." Under this provision of said deed the title and right to the possession of the land embraced within its description was only vested in the grantee, subject to the reservation therein to the grantor — "the right or use of the land * * * over which the waters may flow now or hereafter."
The right of the grantee to the possession of such part of the premises conveyed as were then or might thereafter be overflowed by the waters of the lake, was subject to the superior right reserved to the grantor. That right evidently extended to the high-water line of the lake. The reservation not only necessarily gave to the grantor a perpetual right of flowage over the premises described in the deed up to the high-water line, but also reserved to him the right to the use of the land over which the waters did then or should thereafter flow — in other words, the possession of such land when covered by the waters of the lake.
Our attention has been called to several authorities which hold that a riparian owner vested with the title of land covered with the water of a pond of a lower proprietor, has a right to a reasonable use of the water of such pond flowing over his land, and also the right to cut the ice formed thereon, when it can be done without injury to the owner of the pond. ( Dodge v. Berry, 26 Hun, 246; De Baun v. Bean, 29 id. 236; Cummings v. Barrett, 10 Cush. 186; Hazleton v. Webster, 20 App. Div. 177; Bigelow v. Shaw, 65 Mich. 341.) It will be observed, however, that in each of the authorities referred to it appeared that the right which the owner of the pond had to overflow the land of the riparian owner was for mill purposes only, and hence, a restricted right, those authorities determining that in such a case a privilege on the part of the riparian owner to the reasonable use of the water on his land, or to take the ice formed from such water, may exist when such privilege can be exercised without injury to the millowner below.
Ordinarily, when a riparian owner grants to a lower proprietor on a stream the right to flow his land for mill purposes, the possession of the land thus flowed remains in the riparian proprietor, and he has the right, as held by the authorities above cited, to use the water flowing over his land, or the ice formed thereon, in any way that will not produce injury to the millowner. But in this case, as we have seen, under the peculiar clause contained in the deed of 1857 from Stevens to Goff, the grantor not only necessarily reserved to himself the right of flowing over the land conveyed, but the right and use of the land itself, when and where overflowed by the water of the lake — in other words, the possession of the land when and where overflowed. The authorities, therefore, above referred to, and those on which the learned counsel for the respondent rely, are not applicable to this case.
It is true that, under the provisions of the deed in question, the right of the parties to the possession of the land on the shore of the plaintiff's pond, was, so to speak, a fluctuating one. When the waters of the lake were low, and the place where the ice was cut not overflowed, we see no reason to doubt that the grantee, Goff, could lawfully use the same for pasturage or other purposes, as it appears that he has done ever since the conveyance to him in 1857. Such use and possession of the land when the waters of the lake were low, however, should not be deemed hostile or adverse to the superior right of the plaintiff and his predecessors in title when the lake was full to flow said land, and when thus overflowed, to have the use and possession thereof. In high water when the place in question was covered by and formed a part of the lake, by the express reservation in said deed, not only the lake, but the use of the land thereunder, was in the plaintiff or his predecessors in title. When the defendant cut the ice he took it from the plaintiff's premises, the latter by the terms of the conveyance having the use of the land over which the waters of said pond flowed.
There is a clear distinction between this case and those where the owner of a pond has a right to overflow the land of a riparian owner for milling purposes alone. Under the reservation contained in the deed from Stevens to Goff, the plaintiff, as successor to the title of the grantor, possessed the right to maintain the pond in question for any purpose. He could use it for boating or for skating purposes; as a fish or an ice pond. He was clearly entitled to the use of every part of it. We see no reason to doubt but that he could prevent others from access to its waters. He had a right to cut and sell the ice formed at the place where the defendant took the ice in question. By the terms of the conveyance he was in possession of such place when the defendant took the ice, and of every other part of the lake.
Our conclusion is that the judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed, new trial granted, costs to abide the event.