148
FEDERAL
and to "use, rent, or sell the same, or any portion thereof, as it may deem expedient." , Under this act the woolen company, at great expense, forthwith dug a ditch from a point on the right.hand bank of the Santiam, near the town of Stayton, to a point in the channel of Mill creek, and did thereby conduct water from the Santiam through said channel to Salem; that in company erected woolen mills at Salem on the bank of said Mill creek, on land then belonging to it, and particularly described in the bill,and thenceforward, until May, 187ti, when the building was destroyed by fire, operated the same continuously by force of said water; that said water-power was and is of great value, and the woolen company kept the exclusive use of the same until April 11, 1870, when it to the Salem Flouring Mills Company t4e right to have one-half water flowing through said ditch and channel to Salem, conducted to its premises therein, and the water-right granted to William Waldo all May.l, 10874. On August 24, 1875, company executed and delivered to the Bank of British Columbia a mortgage on all the said property, rights, and privileges so owned by it, and thereafter, in a suit brought in this court to enforce the lien of said mortgage, the same was sold and conveyed to William Reed on Septerriber 6, 1882, who afterwards sold and conveyed it to the City of Salem Company, which compaJ:1.Y,on June 1, 1884, sold and conveyed the same to the plaintiff, which thereupon became, and still is, the owner thereO'f; that the grant to Waldo was a perpetual right to use the water so brought to Salem for the purpose of operatinga flour mill to be built on a tract of ground on the bank of Mill creek just below the property of the woolen company, and containing about two acres, whereupon he erected a flour mill, which, since 1877, has been operated by the water aforesaid, and about June 1, 1884, the plaintiff, by mesne conveyances from Waldo to itself, became and' still is the owner of said mill property and water-rights; and that in 1882 the plaintiff built another flour mill on property adjacent to said mill, and said flour mills have ever since been operated by the water of the SanHam, and would be comparatively valueless without the same. The ditch was constructed from near the town of Stayton to the Santiam on the donation of Stephen Porter and his wife, who theretofore, on April 3, 1856, for a valuable consideration, had by their deed granted to George H. William8, J08eph Watt, and A. H. Reynolds, to the use of said company, "the right of a canal way through all and any lands then'owned or occupied by them in Marion county, necessary to be passed through in conveying the water of the Santiam into the channel of Mill, creek," and also granted to said persons, for the benefit of said. company, authority "to enter on the same for the purpose of cutting a canal sufficiently large to admit the flow of any amount of water required by said company for their puposes at Salem," and agreed "to allow them all the rights and privileges necessary for the construction, use, and preservation of said canal;" that at the date of such conveyance,
SALEM CAPITAL FLOUR MILLS CO. V. STAYTON WATER-DITCH & C. CO.
149
said Williams, Watt, and Reynolds were the trustees of the corporation for whose benefit said rights were conveyed, and the plaintiff by the mesne conveyances aforesaid "has become and now is the owner of and entitled to all the rights, powers, and privileges thereby granted." On May 7, 1852, the date of the official survey of the donation of Stephen Porter and wife, the meandered line of the north bank of the Santiam was the southern boundary of the same, which included all the land in the fractional S. E. t of section 10, and the fractional S. W. lof section 11, in township 9 S. , of range 1 W., of the Wallamet meridian, lying north of said meandered line, as shown on the map entitled "Exhibit A; " that at the time of the execution of the deed by Porter and wife, and the construction of the ditch, the position of the Santiam had gradually changed to the northward, so that the north bank of the same crossed the line between said sections 10 and 11, 8.25 chains north ofits intersection with said meandered line; that said ditch took water from the north .bank of the Santiam at a point 15 chains west of the line dividing said seotions, and 6.75 chains from the nearest point on said meandered line, and designated on Exhibit A as "W. W. Mfg. Co.'s dam, built in 1857;" and said woolen company continued to receive water into its ditch at said point .for the use of its mills at Salem until 1872, when, by reason of a freshet in the river, the channel thereof was suddenly· changed to the southward 30 chains from the point where the ditch connected therewith, .and has ever since flowed in this new channel; wherefore said woolen company was obliged, and did, in 1873, prolong its ditch· eastward from its eastern terminus, along the right bank of the old channel of the river to the junction with the new, and in so doing expended a large sum of money in excavating said channel, in banking the left side of the ditch, and in constructing wing-dams and head-gates thereon, and thereby received and used the water of the Santiam, as before. On July 20, 1876, Stephen Porter and wife made a conveyance, to sundry persons, of the land on which the ditch was prolonged as aforesaid, and thereafter the grantees therein, on January 12, 1877, and Drury Stayton, W}:l0 had been placed in possession of the ditch by the woolen company, to care for the same and regulate the flow of water therein, conspired together and took possession of the prolongation of the ditch, .claiming a right to the same, and on November 12, 1879, said grantees conveyed the same to the defendant Silas A. Jones. In January, 1880, the defendants Silas A. and S. W. R. Jones procured the incorporation of the defendant, the Stayton Water, Ditch & Canal Company, of which they are the principal stockholders, for the purpose of constructing and maintaining a ditch from the town of Stayton to a point on the north bank of the Santiam, where the prolongation {)f the plaintiff's ditch terminates; that said corporation took possession of said prolongation, and conducted water through the same to and below the point where the plaintiffs ditch terminated in 1872; and, by means of a canal there connecting with said ditch, supplied the town of :Stayton with water; and said Silas A. Jones has given some
150
FEDERAL REPORTEn.
Iicehseor easement to said Stayton Oompany in and about said proiongation"to the plaintiff unknown,and did, in 1886, convey to S. W. R. Jones: the property acquited by him under the deed of November 12, 1879;tliat from the formation of the Stayton corporation until 1882, it and the defendant Silas A. Jones held possession of said prolongation, denying any right of the plaintiff's grantor thereto, and in 1882 said corporation constructed a ditch from a point on said prolongation, fifteen chains .west of the eastern ,end thereof, in a south-westerly direction to a point $ix chains south, and below the eastern end Of the plaintiff's ditch, . andthenoo to the old 'canal leading to Stayton, whereby the defendants can send the water which is received from the Santiam, at the eastern endoi the prolongation, to the town of Stayton, shut it off'altogether from the plaintiff's ditch, and thus prevent it from reaching Mill creek, and they have, since 1883,refused to allow any of the water of the Santiam to flow into the prolongation beyond said point of diversion, unless the plaintift' or its grantors would pay them for the same; that said defendants have threatened and dt> threaten that, unless the plaintiff will recognh;e their claim, and pay them what they demand therefor, they will not' allow any water to flow into its ditch, and thereby depriV'e it' of the use of the water of the Santiam ; and said defendants assert that they have been in the continuous and adverse possession of said prolongation, through said.Drury Stayton and others, since January 12, 1877, claiming to oWh the same, and that in 10 years therefrom they will have acquired theexclt1sive right thereto; that the acts of the defendants in this respect have been without the consent, and against the protest, of the plaintiff and its grantors. In January, 1877, the woolen company temporarily ceased to Use said ditch and water-power, and, having no officer or agent at or near Stayton, had no knowledge of the claim :made by the defendants or their grantors to the same until the defendants began the construction of their ditch in 1882, at which time the title of plaintiff's grantors to said ditch and the privileges connected therewith,as derived from the act of the legislature aforesaid, had been controverted in this ,court in the suit to enforce the lien of the mortgage aforesaid, on the ground that the ;woolen company could not mortgage or transfer the same; and after the decision of this court in favor of the right, the case was appealed to the supreme court of the United States. where a decision in favor of such right was not reached until December, 1886, but for which litigation the plaintiff and its grantors would long since have brought suit to protect their rights. The capital stock of the Stayton corporation is $4,000, fully paid up, and both it and Silas A. Jones are insolvent; bu1i,ns to S. W. R. Jones, the plaintiff is not advised as to his responsibility or the extent and nature of his claim to said property or water-rights. ThebiIl prays that the defendantS tmay be enjoined from interfering with the flow of water in said prolongation, or ,asserting any right thereto,and that they be required to remove the dam ;constructed across the' same, and close up the opening made by them in the left bank thereof. question raised by the demurrer is all to the nature and ex· : The
CAPITAL FLOUR MILLS CO.
'I).
STAy'rON WATER-DI'rCH & C. co.
151
tent of the" power" or" privilege 'i granted to the woolen company conDeming the water of the Santiam by the act of 1856, and its authority to dispose of the. same. The unqualified right to takewater·from the Santiam, and conduct the sanie to or· near Salem through the channel of Mill creek, is expressly granted by section 5 of the act; .and for such purpose the company is thereby also authorized to enter on "lands" and said" creek," "and do all things proper and suitable for a safe, direct, and economical conveyance" of such water, subject to the payment of damages for any injury to the property of another; 8ection6 .of the act provides: "Said corporation shall have the exclusive right to the hydraulic powers and privileges .created by the water which is taken from the Santiam river, and may use, rent, and sell the same, or any portion,thereof, as it may deem -expedient. " The purpose and intent of this section plain enough, although it · must be admitted that its composition is faulty and confused. The "hydraulic powers" are "created by the water" in motion after it is taken from the SaIitiam; in fact, it is the power the water in motion. This power tne company was authorized to dispose of in whole or in part ·wherever it existed. But the water' created no "privilege."; Thatwas 'created by the act, and consisted in the right to take water for hydraulic purposes out of the Santiam. This "privilege," and the "power" resulting from' ita exercise, the woolen company was authorized by thissootion · to dispose Of by mortgRge or· otherwise. It was so held by this court in the suit to enfol'ce the lien of thElmortgage given by the company to the Bank of British Columbia, and on an appeal to the supreme court, the rUling w!lsaffirmed, (Manujacturing'Co'; v. Bank, 119U. S.191,7 Sup. Ct. Rep. 187;) and there ought never to have been any question about it. The extent and nature ·ofthe power consists simply in the right to take water from the Santiamj without limit or restriction as to quantity or place, and conduct the same to Salem by the route indicated. The river may be tapped at more than one place at the same or successive times. In short, there is' no limitation on the power, and it is granted subject to only one condithm,-'-that the-company "shall be answerable in damages · to any person whose property is injured by its acts." And new, what right did the plaintiff's grantor, the woolen company, acquire under the deed of Porter and wife? This deed grants to Willialns, Watts,an'd Reynolds, for the considerfl.tion of $400, the right to cut a' canal-way tht0ugh any lands owned or occupied by the grantors, for the purpose of taking the water out of the Santiam, to the channel of Mill creek; in any amount the company may require for its "purposes at Salem;'" and the grantors therein thereby agree to allow the company Hall the:rights and privileges necessary for the construction, use,and preservation of said canal." , The powen,ndprivilege waS not ex:haustedby the construction of the ditch to a certain point on the riverin 1857.F'orthe purpose of main-
of
152
FEDERAL REPORTER.
taining a .canal or ditch on, over, and through the Porter donation, so as to receive and take water from the Santiam thereon, in such quantity as
the company or its successors in interest might or may need or require at Salem, it continued and still continues in full force. Therefore, when the channel.of the Santiam was, in 1872, suddenly deflected to the southward, and away from the eastern. terminus of the woolen company's ditch; so that no water flowed therein, the company had a right to make any necessary prolongation of the same, anywhere on such donation, including the former bed .or channel of the river, so that sufficient water would again flow through it to the channel of Mill creek. But the same result would follow, ifthe stipUlation .for the" preservation" of the ditch was not in the Porter deed. In the nature of things, and by the terms of th.e deed, the grantwas in fe'e,-without liniitation. The act then. and since in .f\lrce in regard to con'veyances provides: .. The term · heirs.; or words' of inheritance. shall not be necessary·to create or convey an estate in fee-simple; and any conveyance of any real estate hereafter:executed of thl'l grantor. unless the intent to vassa less estate shaY appear 1:>1 express terms. or be necessarily implied in the. terms of the ',' , This provision is applicable tGthe grant of ao easement which is an interest in 1and, by deed, such as the plaintiff claims in the Porter donation.: This easement maybe for years, for life, or in fee, (Washb. Easem. 4th: Ed. 26,) owing' to the terms of the deed., and the circumstances under which it wasexecuted,subject, however, to the rule prescribed by this statute, that 00 words of inheritance are necessary tocreate an easement in fee, and that the duration of the grant shall equal that oitbe estate of the grantor. in tbe lands subject to the .easement, unless a contrary purpose shall appear. At the date of the grant oftbl:r easement, Porter and wife were seized of an estate of inheritance in the land, and there is nothing in the terms of their deed or the nature or purpose of the easement which at all indicates an intention to grant the easement for a less time than the duration of their own estate in the premises, but the' contrary. Hence the , right to maintain a ditch on and through the Porter, donation was to conduct water from the Santiam to the channel of Mill creek, for the purposes of the woolen company at Salem, is perpetual; and if, in the course of time or events, it becomes necessary, to accomplish such purposes, to widen', deepen, or lengthen said ditch, the then owner of the easement maydQ, :so. As was said Pomfret v. Ricroft, 1 Saund. 322, "When the use of anything is granted, everything is granted by which the grantee may have and enjoy such use.?' See, aJso, on this point, Prescott v. White, 21 Pick. 341; Gollins v. Driscoll, 34 Conn. 43; Donnell v. Humphreys, 1 Mont. 518; Dyer v. Depui, 5 Whart. 584; Thompson v. Uglow, 4 Or. 369. of the woolen company to flow the .water of the Santiam But over the old bed of the river to its ditch, may be rested on another ground than its right to prolong its ditch, and use such old bed for such prolongation. When a stream is suddenly diverted from its chan-
SALEM CAPITAL FJ.OUR MII,LS
co. V.
STAYTON WATER-DITCH & C. CO.
153
nel, any person who has acquired a right to the water flowing in such ch:mnel may return it to the same. Washb. Easem. (4th Ed.) 444. 'fhe woolen company, as the grantee of Porter and wife, had an interest in the flow of the Santiam in its channel by the eastern end of its ditch, and therefore upon its sudden diversion to the southward it had a right to turn the river back to the old channel, or at least, so much thereof as was necessary for its "purposes at Salem." And in so doing, it might facilitate the passage of water from the new to the old channel, and through. the latter to its ditch, by wing-dams, and by deepening and cleaning the same, and confining the flow within narrower limits, or other proper and suitable means. But whether the course of the Santiam changed suddenly or gradually. so long as it ran over or upon any portion of the Porter donation, the woolen company had a right under the' grant to prolong or extend its ditch over and upon the same to the river, and take the water therefrom, and conduct that same to the channel of Mill creek, and thence to Salem. And, in my judgment, if the Santiam should change its course, so as to leave the Porter donation altogether, the party entitled to the benefit or privilege granted to the company might extend this ditch in any direction through said donation, so as to reach the stream and take water therefrom. But it is objected that the deed from Porter and wife is void for want of a cestui que tr'UBt at the date of its execution. . It appears from the deed and act that a ntimber of persons were then associated together in what they caUed "a joint stock company," under the name of the "WaUamet Woolen Manufacturing Company." As a matter of law the association was nothing but a partnership doing business under this name, as it lawfully might. The grant was made to Williams and Watt, two of the partners, and Reynolds, for the use of the company, and soon after the persons constituting the same were by the legislature "declared a body politic and corporate," with the organization and name then in use by them. The natural persons constituting this association, partnership, or company, and calling themselves collecti vely the" Wallamet Woolen Manufacturing Company ," were in existence at the date of the deed, and capable of taking the beneficiary interest in the grant. The· description of them as stockholders in a certain" joint stock <lompany," was a sufficient,designation of them. Friedman v. Goodwin, McAll. 149. But if this were otherwise, and there was no cestui que trust or use in existence at the date of the deed, nor until the actual incorporation of the woolen company in the December following, the objection is not well taken. Mr. Washburn, (2 Washb. Real Prop. 3d Ea. 173,) after a careful review of the authorities, says: "It may be laid down as a general proposition that it is not necessary, in order to create a trustestate, that a cestwi que trust should be named who is in being." And again (ld. 198) he says: "A trust may be valid and effectual, where a trustee is named, although the cestui que trust may not then be in esse, provided such cestui que trust subsequently came into being." See, also, on this point, A8hhul'8t v. Given, 5Watts & S. 328; Urket v. OoryeU, ld. 60.
154
FEDERAL,REPORTER.
CouI)sel for the defendants sets out the deed in his brief, as it should have; been in the. bill, ftoni which it appears that tbeconsideration for the,d'eedwas $400, that thereby Porter and wife did "release and quitclaim" to the trustees therein named the easement in question, to the use of the woolen company "alone;" and that the word "assigns" is not used therein, or any other word or, phrase indicating an intention on the part'oithe grantors that any assignee or successor in interest of the cOll'lpanyshould have or exercise the rights and privileges thereby granted. , The term" assigns" is not necessary, in a deed, either as a word of limitation denoting the quantity of the estate granted, or to give the grantee authority to dispose of the same. When the woolen company, acquired the .easement in question, it took the same with the rights to dispose of it at pleasure, unless restrained by some express provision in the deed, or for lack of authority as a corporation. The deed contains no such provision, and the act, as we have seen, conferred on the company an ,unqualified power of disposal. The necessity of using the word "alone" in this connection is not apparent. But the only effect that ban be given to it, with any show of sense or reason, is that the in the deed, took the right and privilege thereby granted, not for:themselves, but solely for the use and benefit of the woolen company; and this is no restraint on the disposing power of the latter. And a voluntary sale of the. right and privilege by the company, or one made on legaL process, to satisfy its debts, would so far be a disposHion to the "alone" or sole use of the company. If Porter and wife had sold their donation outright to these three trustees, to the use of the woolen company 'faIone," the result would have been the same. The company, being the owner of the property, could dispose of it when and to whom it pleased. " And lastly, it is objeoted that this right is an easement in gross, and therefore not'assignableby the grantee, the woolen company. In support of this coneltision·it is claimed, that there is no land or' estate' described in the deed .in connection with which the water taken from the Santi am was to be u s e d . ' His common learning that a right or easement in or upon the land of another, to be used by the grantee.generally, and not in connection with or' dependent upon any other land or estate, is not assignable. It is, called a right. in gross,--,.in hulk. It belongs to the person, and dies with him. But an easement, such as a right of way over the land of an· other, or to take water therefrom, is said to be appurtenant or appendant when-the grant thereof is made with reference to other land, whereon, or inconneetion wherewith, it is to be used or enjoyed. The land which. is burdened with the way. or from which the water is taken, is called the servient '8state,while that :which is 'benefited by the easement is called the, dominant estate. The easement is said to be appendant or appurtenant to the dominant estate,and passes,with it as an incident thereof. 8Washb. Real Prop. 340; Washb:Easem.2,18. An easement appurtenant, as against 'one in gross, is favored in the law ,and courts will not construe a grant of an easement to be a mera
SALEM CAPrrAL FLOUR MILLS CO. v. S'rAy'roN WATER-DITCH & C. CO.
155
,personal right, unless such intent fpl8.inly appears. .(Washb. Easem. 45) says:
Mr. Washburn
'''fhough ail' easement, like a right of way, may be created by grant h: 'gross, as it.i8called.or.attached to, the person of the grantee, this is never presumed when it 'can fairly be construed to beapPl1rtenant to some other .-estate, and, if it is in gross, it cannot extend beyonq., the life of the grantee."
The deed of April 3, 1856', provides that the canal to be cut through the grantors' land shall be "sufficiently large to admit the flow of any amount of water required by said company for their purposes at Salem, and agree to allow them all the rights and privileges necessary for the construction, use, and preservation of said canal." It is manifest from the deed, and the circumstances attending its ex cution. that the granttl> the woolen company was made and received with the intent and purpose that the water of the Santiam would be taken from through the Porter donation ,and conducted by the company to or near Salem, and there used, at least to operate the mill or mills of the grantee then or thereafter to be built at that place. There 1?eing no liinitto the tirnewhen the grantee should commence to take alid conduct this water to ;Sale,m, or the. quantity It may take and use, ·and as the grant is in fee and assignable with the dominant estate, in ·my judgment, the owner ofsuch estate, or its successors in intetest, may <.lontinueto take this water from the Santiam, and conduct it to Salem, and there use it to operate any mill or machinery owned by them, no matter when erected. And under power given to the woolen company, by it5' act of incorporation, to dispose of the water at pleasure, it and its successors in interest in the dominant estate and this easement and appurtenances thereto, may conduct and deliver this water at Salem for hydraulic rurposes to others on such terms and conditions as may be agreed on. Of course, ,the legislature could not' confer on the company any right to enter on the the land of the Porters, and take this water without their consent, payment of damages therefor. But the deed of Porter and wife practically gives the company the right to take out of the river on the Porter donation all the water it wants for its purposes at Salem; and,the disposition of it, when there, as authOl ized by the act, cannot work any prejudice or wrong to the grantors, or their assigns, by a subsequent grant or conveyance, such as these defendants claim to be. The right to relief in equity, under the circumstances, is clear. The remedy at law is utterly inadequate. The interference of the defendants with the prolongation of the plaintiff's ditch, and the flow oi water therein, is a.continuous trespass, and an injunction will be allowed to prevent it, at least on the gronnd of preventing a multiplicity of suits. The remedy by all action at law for each act or each day the trespass i! repeated is altogether inadequate. 3 Pom. Eq. Jur. § 1357; Coulson v. · City of Portland, 1 Deady, 494. Counsel for. the defendants in his brief refers to an action of pending in this court by the plaintiff against thet>e defendants for the
·156
I
possession of the prolongation of this ditch; but the result of the action will not determine the right of the. defendants to take water therefrom, nor prevent the defendants from lowering the willow dam which they have constructed below the old dam of the plaintiff's which they have partially removed, by which means they can draw off all the water that enters said prolongation, and not allow any of it to enter the ditch leading to Mill creek. The demurrer is overruled.
UNITED STATES'll. BACKr.AND.
(Circuit Court,]). South Carolina. December 12, 1887.) RECOGNIZANCE-RELEASE OF· SURETY.
The surety on a recognizance, the condition of which is that the defendant shall personally appear before the circuit court in April, 1887, to answer, etc., and to do and receive what shall be enjoined by the court, and not to depart the court without license, is discharged where the defendant appears, and the court takes no action whatever in the case, although an agreement is mad& between the defendant and the commissioner, for the benefit of the former, without the consent of the surety, that the case shall not be sent up until the April term, 1888. .
Motion to Discharge the defendant Kresse!, as the surety on a recognizance. H. A. De Sa'lJ,8sure, Asst. Dist. Atty., for the United States· . J. P. K. Bryan, for defendant. SIMONTON, J. The defendant was brought before a commissioner of this court, charged with an offense against an act of congress. He waived an examination, and on twenty-ninth March, 1887, was bound over under recognizance, havingF, Kressel, Jr., as his surety. The condition of the recognizance is, "if the said Backland shall personally appear before the circuit judges of the United States of·America at the next circuit court of the United States for the district of South Carolina, to be held at the usual· place of judicature in Charleston, on the first Monday of April next, then and there to answer," etc., "and to do and receive what shall be enjoined by the court, and not to depart the court without license. "The circuit court met on the first Monday in April, 1887, and the grand jury was discharged. This case was not presented at that term; nor were the general orders taken as is usual. Mr. J. P. K. Bryan, of counsel for the defendant, says that he and his client were both in court when the grand jury were discharged. The next term of the circuit court began on fourth Monday in November, (this term.) The grand jury have been discharged. This case has not been presented. Mr. Bryan says that he has been represented in court during this term.