Riverdale Park Co. v. Westcott

Robinson, J., delivered the opinion of the Court. The appellee is the owner of a grist and flour mill operated by water, supplied from a dam built across the eastern branch of the Potomac River, and conveyed to the mill by means of a race. The mill and the land on both sides of the race and dam belonged originally to George B. Calvert. In 1859 Calvert sold and conveyed the mill and ten acres of land adjoining, “together with all the buildings, loater power, appertaining or belonging to said mill seat, to George W. Taylor, under whom the appellee claims.

In 1887 — nearly thirty years after the Taylor grant— the heirs of Calvert sold and conveyed the land on both sides of the race and dam to one Lutz under whom the appellant claims. The land thus conveyed to Lutz and by Lutz to the defendant, has been laid off as a site for a town, and streets and avenues have been opened and graded, and sewers constructed for the drainage of the ³²² same, one of which empties into the mill race of the appellee. ' The dam hy which the mill was supplied with water, was washed away by the great freshet of 1889, and, the plaintiff having built a new dam, the defendant, by its agents and servants, attempted to tear down and destroy part of said dam, to prevent which an injunction was granted hy the Court below. The new dam, the defendant contends, is not built on the site of the old dam, its. west end connecting with the hank higher up the stream. Besides, it is higher, it is said, than the old dam, thereby increasing the quantity and volume of water, and causing it to overflow the mouth of the sewer which empties into the race, to the great damage of the appellant.

The record is quite a large one, containing the testimony of no less than thirty witnesses, all of whom were examined, cross-examined, and re-examined at great, and it seems to us, rather- unnecessary length. The real question, however, is a narrow one, and one, too, about which there cannot he, it seems to us, any difficulty. The rights of the parties to this controversy, depend solely upon the construction of the deed from Calvert to Taylor, hy which he conveyed to the grantee the mill and all the water rights appertaining or thereto belonging. So not only the mill, hut all its water rights and privileges, thereby including the dam and the race, with the right to maintain a headway of water sufficient to operate the mill, with the capacity it had at the time of the grant, and which the proof shows to have been fifty barrels of flour a day, all passed under the Oalvert deed to Taylor, and to those claiming under him.

By the erection of the mill Calvert himself imposed a burden on one part of his estate in favor of the other, and when he conveyed the mill and water rights to Taylor, the latter as to such water rights and privileges, became the dominant owner, and the owner of the. land along the race became the servient owner. ³²³ As to this there can he no controversy. But the appellant’s contention is that in rebuilding the dam the appellee has extended its west end higher up the stream, and that the dam itself is higher =than the old dam. Without attempting to review the somewhat conflicting testimony in regard to the appellant’s contention, it is sufficient to say, that it establishes beyond controversy, that the west end of the dam does in fact extend and connect with the bank higher up the stream than the old dam. But this, it appears, was absolutely necessary by reason of the washing away of the west bank of the stream.

The same freshet that washed away the dam, washed away also the west bank of the stream, and it became necessary, therefore, to extend the west end of the new dam higher up, in order to connect it with the bank of the stream. As matter of fact, the record shows that during the forty years since the execution of the Calvert deed, the successive owners of this mill property, have been obliged, in rebuilding the dam, to extend its west end further up the stream in consequence of the washing away of the west bank. And this was done without objection on the part of Calvert, the grantor, or his heirs, thus showing the construction of the j>arties themselves, as to the water rights of the owners of the mill property. The dam is absolutely necessary to supply the mill with water, and, if it is