Citations
- 306 N.Y. 297
Full opinion text
Desmond, J.
Our question is as to the meaning and effect of a reservation of water rights appertaining to a natural lake or pond known as Loch Sheldrake, in Sullivan County. Into a deed, which was given in 1919 to Greenspan and others (predecessors of plaintiff) by persons named Divine, and which conveyed to plaintiff’s predecessors the whole of Loch Sheldrake and all its shores, there was written this language: “ The parties of the first part hereby expressly except and reserve from this conveyance the right and privilege of damming the Sheldrake Lake or Pond and the outlet thereof, and of impounding the waters of said Lake or Pond and raising and drawing the same, together with the right of ingress and egress for the purpose of constructing, repairing and maintaining the said dam, or any part or portion thereof, and any and all conduits, raceways or pipes connected therewith or leading therefrom, which now exist or may hereafter be constructed. Such waters, however, shall not be drawn lower than the natural low water mark of the said Lake or Pond, and they shall not be raised higher than the normal or natural high water mark of said Pond, except that in case of unusual or extraordinary flood the same may be impounded for not to exceed forty-eight (48) hours at any one time.”
All the rights thus reserved were, in 1927, conveyed, together with a so-called “ mill lot ” some distance south of Loch Sheldrake, by the Divines, to Isidore Evans, defendant’s husband and predecessor in title. Beginning about 1915, and continuously since then, Mr. and Mrs. Evans have operated a large summer hotel on other lands owned by them, not acquired from the Divines, south of the mill lot, and about a half mile south of Loch Sheldrake. Many years before any of the deeds herein referred to were given, a dam had been built, in an outlet of Loch Sheldrake, by the Divines, and from it, through a pipe, water was carried by gravity to and for a mill formerly operated by the Divines on the “ mill lot ”, the water flowing, after such use, out of the mill’s tailrace into a brook. Undoubtedly, the Divines made the 1919 reservation of the Loch Sheldrake water rights, because of their then ownership and operation of the mill, but the reservation itself not only did not limit the water diversion to mill uses (it does not mention either the mill lot or the mill), but, on the contrary, the reservation (supra) embodied its own sole limitation, that is, that the dam be so used that the waters of the lake will be not drawn below low-water mark, or flooded above high-water mark. Before and after the giving by the Divines of the 1919 deed first above mentioned, in which the water rights were reserved, the Divines at times sold, to Mr. and Mrs. Evans, for use at their hotel, water which had been carried by the outlet pipe to the mill lot. After the hotel owners had acquired the mill lot, the mill operations were (in about 1935) discontinued and, ever since, large quantities of water, drawn from the lake through the pipe to the old mill lot, have been piped further on into the hotel grounds for use at the hotel by defendant.
This suit was brought to obtain, for plaintiff, present owner of the lake and its shores, a declaratory judgment that defendant, by the water right reservation (supra), obtained no more than an easement which was appurtenant to the mill lot and which, as plaintiff asserts, permitted the use of the water for the now discontinued mill uses only. Plaintiff demanded an injunction and money damages, also. Defendant’s opposing position, with which we will agree herein, is, as expressed in her answer, that by her succession to the water rights reserved in the 1919 deed, she “ is entitled to the sole, absolute and free use of the waters of Loch Sheldrake between the low and high water marks for the benefit of her business and business properties.”
The trial court came to the conclusion “ that the reservation of the right and privilege to the use of the waters of Loch Sheldrake was a reservation in connection with and appurtenant to the Mill lot and for which property only the privilege reserved was intended ”, that defendant, succeeding to the rights of the Divines under that reservation, has no right to draw or use the lake waters except for mill or manufacturing uses on the mill lot, and that such rights as defendant has are not exclusive and do not exclude plaintiff from drawing and using the lake waters. The judgment, entered after trial, perpetually restrained defendant from drawing water other than for mill purposes.
On defendant’s appeal to the Appellate Division, that court took a view of the case much more favorable to her. It concluded that the 1919 reservation was not limited, expressly or by implication, to use of the water for mill purposes, and that, while defendant’s assertion of an exclusive right to use the water for any purpose whatsoever is perhaps too broad, “ she has the right ’ ’, said the Appellate Division, ‘ ‘ to use the water for the purposes the Divine family used the same for at the time they conveyed the lake to Greenspan and others ” (282 App. Div. 51, 58), that is, at the time of the giving of the 1919 Divine-Greenspan deed containing the reservation.
Plaintiff alone appealed to this court, so we are powerless to modify the judgment, in defendant’s favor. Despite holdings or seeming holdings by both courts below, and concessions or seeming concessions made at one time or another by both parties, that the reservation quoted in the first paragraph hereof from the 1919 deed, created an