Tuttle v. Harry , 56 Conn. 194 ( 1887 )

Pabdee, J.

On January 19th, 1866, the defendant owned a mill site; he desired to repair the mill; also to raise the dam and flow land of the defendant. On that day the latter executed and delivered to him a writing as follows :— '

“ Know all men by these presents that I, Ira A. Tuttlé, of the town of Wallingford, in the county of New Haven and state of Connecticut, for and in consideration of five dollars to be paid to me, or to my heirs, executors, administrators or assigns, annually, commencing on the first day of January, 1867, and so on in succession on said first day of January of each succeeding year, the said sum of five dollars to be paid to me, or to my heirs, or executors, etc., as aforesaid, have demised and leased, and do by these presents demise and lease unto James Harry of Cheshire in said county and state, for and in consideration as aforesaid, one certain piece of land situated in the westerly part of said Wallingford, and contains two acres more or less, and bounded north on my own land, east on my own land and highway, south on Seymour Doolittle, west on the said James Harry. Said piece of land is to be used by the said James Harry, his heirs, executors, administrators or assigns, for the purpose of flowing the same with water for the use of a sawmill and other machinery. Said James Harry and any other person under him is to have no right to raise his dam so high as to flow across the highway at the east end of said described land, excepting in the. case of freshets when it cannot be avoided. The said James Harry is to keep a fence at the west end of said land sufficient to keep cattle from passing through said land whenever the water in said pond is so low that the ordinary fence is not sufficient. Whenever the said James Harry or any other persons under him shall cease to flow said land in manner as aforesaid for the term of one year in succession, then this lease is to be void and of no further effect. And I, the said Ira A. Tuttle, in consideration of the payment of the sums aforesaid, do by these presents bind myself and my heirs, executors, administrators and assigns, unto the said James Harry, his heirs, executors, administrators or assigns, that he and they shall quietly use, occupy and enjoj^ said described premises on the terms and conditions above mentioned so long as he and they see fit to use them for the purpose aforesaid. In witness whereof I have hereunto set my hand and seal in Wallingford, this 19th day of January, 1866.

“Ira A. Tuttle. [l. s.]”

The instrument is witnessed by two witnesses and acknowledged before a magistrate, and was duly recorded on the 10th of February, 1866.

Thereupon the defendant repaired the mill and raised the •dam, and has from thence continuously flowed the defendant’s land. He paid the rent as it fell due, including that of January, 1886; he tendered it for January, 1887; this the plaintiff declined to accept. In December, 1886, the latter notified him to quit possession of the land on or before January 1st, 1887. He did not do so. The plaintiff brought this action for possession, and for rents and profits. Upon the trial the latter claimed the writing to be a lease from year to year, and that the tenancy had been terminated by the notice ; the court overruled his claim and rendered judgment for the defendant. The plaintiff appeals, for the reason that the court erred in deciding that the writing was not a lease from year to year.

This instrument is not drawn with professional accuracy; nevertheless the consenting intent of the plaintiff and defendant is quite apparent. Neither intended a lease in the ordinary acceptation of that word. The subject is a piece of unimproved land, there is no expectation that the defendant will build upon or cultivate it; or that he will make any other use of it than to impose upon it such burden of water as he may wish to store for use upon his wheel. It is the grant by deed of ah easement appendant to his mill; to him, and to such other persons as may own it; the plaintiff covenanting for himself and his heirs and assigns that the defendant, and those acquiring title from him, shall quietly enjoy the easement for such length of time as they shall observe the condition of the grant. And the length of time of non-user which shall work a forfeiture is. fixed by the contract.

The grant to a mill owner of the specific right to flow land for a time having no more definite term of continuance than the grantee’s necessities, offends no rule of law or of public policy. An owner may convey the fee, receiving the consideration in the form of a perpetual annual rent, with forfeiture upon non-payment. The law will protect the title in the grantee until entry for forfeiture. And an owner may impose by deed a flowage servitude for such time and upon such conditions as are satisfactory to him.

In this instance the grant is by deed, sealed, witnessed,' acknowledged and recorded j meeting all requirements for a conveyance of the fee absolutely. There is no suggestion by the grantor that any accident or mistake on his part, or fraud or concealment on the part of the grantee, entered into the transaction.

It is of no legal significance that the grant is by deed poll.

By acceptance and use the grantee is as firmly bound to pay rent for the term of use as he would be by covenant.

There would seem therefore to be no bar to the operation of the fundamental rule of interpretation, which requires courts to give effect to the ascertained intent of parties to a contract.

There is no error in the judgment complained of.

In this opinion the other judges concurred.