JOSIAH T. MILLER, Respondent,
THOMAS J. CLARY and PATRICK S. CLARY, Appellants, Impleaded with GENEVA-SENECA ELECTRIC COMPANY, Defendant.
APPEAL by the defendants, Thomas J. Clary and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Seneca on the 13th day of May, 1911, upon the decision of the court, and also from an order entered in said clerk's office on the 29th day of April, 1911, granting the plaintiff an extra allowance.
Daniel Moran, for the appellants.
Charles A. Hawley, for the respondent.
Judgment and order affirmed, with costs, upon the opinion of CLARK, J., delivered at Special Term.
The following is the opinion delivered at Special Term:
In June, 1867, the Phoenix Mills of Seneca Falls, a corporation, took title to several parcels of real estate located in the
village of Seneca Falls, together with certain valuable water rights, and among the properties acquired by said corporation were four parcels of land described in the complaint, and which in 1872 were conveyed by the Phoenix Mills, of Seneca Falls, one parcel being conveyed to Michael I. G. Zalinski, another parcel being conveyed to Isaac Desky, another to Chauncey B. Howe, and still another parcel being conveyed to William Johnson, and in this litigation these several parcels are called by the names of the purchasers, viz., Zalinski, Desky, Howe and Johnson.
The Phoenix mills building, in which were located the water wheels which propelled machinery in its factory, was located between Fall street and the center of Seneca river in the village of Seneca Falls, and the four parcels of land in question were further east and fronted on Fall street, extending back southerly to the center of the Seneca river, and on the southerly end of these lots there was a tail race for the flow of water from the mill of the Phoenix Mills Company, and this race emptied into the Seneca river some distance easterly of the lands in question.
In 1872 the Phoenix Mills Company, which owned the Phoenix mills and the valuable water rights referred to, and the lands in question located easterly of its mill property, divided the tract of land lying east of its mill into lots and made some pre-paration to erect buildings thereon, when it sold the four lots to Johnson, Desky, Howe and Zalinski, as above stated.
The deeds given to these several purchasers contained certain covenants which are substantially alike, the one contained in the Desky deed, immediately following the description of the land conveyed, being as follows:
'Together with sufficient power (subject to the elements) from a wheel in the old Stone Mills or Jewett building to turn a shaft and propel machinery in the basement of any building to be erected on the premises hereby conveyed not requiring more than ten horse power, provided, however, that such machinery shall be confined to the basement stories of such building, and shall not be used elsewhere; nor shall such shaft ever be used for any other purpose than operating machinery in said basement, and provided, also, that said shaft shall be
put up at the sole expense of said party of the second part, and shall be properly connected with the shaft running from said mill and shall be made and put up in a manner to be approved by the said party of the first part. And said shaft and machinery shall at all times be kept in good condition by said party of the second part and shall be operated in a proper and economical manner, and shall be constructed and maintained so as to afford the owner of the adjoining lots on the east a good, safe and convenient connection therewith. And said power is to be used in common with all other persons who shall be entitled to power from said wheel.
'This grant is also made and accepted subject to the following exceptions, reservations, easements and conditions: * * *
' Second. It is subject also to the existing tail race of said Stone Mills or Jewett building; and the said party of the first part expressly reserves and excepts a tail race twenty feet wide across and through said premises as at present. And it is further provided and this grant is made and accepted upon the express condition that no obstruction shall ever be placed over, or above, or in said tail race for a space of eight feet above high water mark; but said tail race shall be kept forever open and clear from interference by said party of the second part for a space twenty feet wide from the bottom of the race downwards, and upwards eight feet from and above high water mark, with the free and unobstructed rights of said party of the first part with necessary men and teams, to pass and repass for the purpose of cleaning out and repairing or altering and improving said tail race. But the said party of the second part may erect buildings over said tail race upon reserving and keeping open said channel or space twenty feet wide and eight feet high above high water mark. Said party of the first part shall keep said wheel in said mill in good condition and operate the same economically, and construct and maintain said shaft of proper dimensions to the west ...