Batavia Manufacturing Co. v. Newton Wagon Co.

Citations

• 91 Ill. 230

Syllabus

<p>1. Deed—construction. If the intention of the parties to á deed for land with right to the use of certain water power can be ascertained as well from the attendant circumstances, the situation of the parties, and the state of the thing granted, as from the language employed in the deed, effect must be given to it.</p> <p>2. Same—construed as to right to water power. Where a party, by deed, conveys all of his land west of the center of a river over which he has a dam erected, and one-half of the water power afforded by the dam to be drawn or taken from any point west of the center of the river, covenanting to keep the dam up to the same height, it will be considered that it is the right to the use of the momentum of water in its passage, and not a given quantity of . water, that is the subject of the grant aside from the land conveyed, and the right to the other half of the water afforded by the dam will be restricted in its exercise to the east center of the main channel of the stream, the right to draw or use the water at any point west of the center of the stream by the grantee necessarily excluding the grantor from the exercise of the same right.</p> <p>3. Water power—grantor of not interested in Us use after it passes below him. The grantee of one-half of the water power afforded by a dam, after the water has passed from the upper pond through a sluiceway into a lower pond, created by a lower dam across a slough, will have the undisputed control of the use of the water in such lower pond, and the grantor or his assigns can only object that, by.enlargement of the sluice, more water is drawn into the lower pond than the original grant authorized, but in what manner the water, when there, shall be distributed as motive power, will not concern the original grantor.</p> <p>4. Same — grant of part of water power construed. A deed for certain land abutting upon a mill pond granted the right to use through a raceway from the pond the following described amount of wat