#### Winnebago Paper Mills, Appellant, vs. Kimberly-Clark Company, Respondent. Same, Respondent, vs. Same, Appellant.

*February 19*

March *9, 1909.*

*Waters: Conveyance of water-power dam, canals, etc.: Title to lock: Easement or fee?*

*1.*Pursuant to an act of the legislature in 1847, a dam was constructed across the south, channel of Pox river, with a canal and a lock for the passage of boats. In 1862 the federal government built a canal on the other side of the river, and the lock thereafter fell into disuse. In 1867 the owners conveyed the dam, together with an easement over the lands occupied by its ends for the purpose of maintaining it; also all their right, title, and interest in and to the water held and water power created by the dam, and the land occupied by the canal and race used for carrying water from said dam to the mills in the village, to the width of 100 feet each, as specified, in the plat. It appeared, among other things, that the statute authorizing the dam required the construction and operation of the lock as a component part of the improvement; that the lock, though disused, was maintained until after the conveyance; that its maintenance or the construction of a new one by the owner of the water power could probably he compelled; that the lock was only thirty-five feet wide while the width of the canal and race was correctly stated in the conveyance as 100 feet; that the lock was located upon an arm of the canal and was not itself used to convey water to mills, hut the portion of such arm above the headgates had been so used; and that without the use or *426control of the lock the power conveyed might he largely impaired. *Beld,*that the lock constituted a part of the canal and was included in a conveyance thereof, though not specifically mentioned.

2. The rights of the parties under such conveyance are to he determined as of the date thereof, and the subsequent filling up of the canal or lock could not operate to divest the title acquired.

3. A conveyance of a dam and mill races or canals and the water power furnished hy the dam, reciting that it was intended thereby to convey the entire interest of the grantor in all said property, carried the grantor’s title to the fee of the bed and banks of the canals, including a lock, and not a mere easement to use the same for water-power purposes; and upon discontinuance of the use of the lock it did not revert to the grantor.

Appeals from a judgment of tbe circuit court for Winnebago county: Geo. W. BueNell, Circuit Judge.

*Affirmed on plaintiff's appeal; reversed on that of the defendant.*

This is an action of ejectment brought to recover possession óf a parcel of land formerly used as a lock for the passage of boats from a point above the dam in the Fox river at Neenah to Little Lake Butte des Morts. The lock in question fell into disuse after the year 1862, when the government of the United States constructed a channel for the passage of boats on the Menasha side of the river. The lock was gradually filled up from 1884 to 1890. Other material facts are stated in the opinion. The circuit court held that the plaintiff was entitled to a one-third interest and the defendant to a two-thirds interest in the strip of land in question. Both parties appealed from the judgment.

For the plaintiff there was a brief by *Eaton & Eaton,*attorneys, and *Barters &*Beglinger, of counsel, and oral argument *hj'Fred Beglinger*and *M. H. Eaton.*

For the defendant there was a brief *bj-Hooper & Hooper,*and oral argument by *Moses Hooper.*

Barnes, J.

This being an action of ejectment the plaintiff must prevail, if at all, on the strength of its own title, not *427upon tbe weakness of tbat of its adversary. Tbe plaintiff claims title. So does tbe defendant. Both claim tbrougb a common grantor. Defendant also asserts tbat, if tbe title is-not vested in it, it is vested in a third party not before tbe court. It is not material for tbe decision of tbis case where-tbe title is, provided it is not in tbe plaintiff.

On March 14, 1870, James Bassett and Abigail Bassett executed a quitclaim deed of tbe lock in dispute to Hungerford and Daniels, tbrougb whom tbe plaintiff claims by mesne conveyances. It is tbe contention of tbe plaintiff tbat at tbe time tbis deed was executed tbe Bassetts owned a two-tbirds interest in tbe lock. On September 18, 1867, tbe same grantors executed a conveyance to Smith and Proctor, conveying the-following described property:

> “Tbe dam across tbe south channel of tbe Eox river at the-village of Neenab in said county, commonly known as the-'Neenab dam,’ erected and maintained pursuant to tbe provisions of an act of tbe legislature of Wisconsin entitled 'An act to authorize tbe construction of a dam across tbe Eox river,’ approved February 8, 1847, with tbe right, privilege and easement of tbe land occupied by tbe ends of said dam on each- side of said channel for tbe uses and purposes of keeping and maintaining tbe said dam, also all the right, title and interest of tbe said parties of tbe first part in and to tbe water-held and water power created by said dam, excepting as hereinafter expressly reserved, and to tbe land occupied or to be-occupied by tbe canal and race used for carrying tbe water from said dam to tbe mills and manufactories in said village of Neenab according to tbe recorded plat of Bassett’s addition to Neenab to the width of one hundred feet each as-sjmcified in said plat.”

It is tbe contention of defendant tbat an undivided two-thirds interest in tbe lock passed under tbis conveyance. The-plaintiff did not succeed to any interest conveyed to Smith and Proctor. If tbe lock in question was conveyed by that-deed, then plaintiff has no title to an undivided two-thirds interest therein. If it was not so conveyed, such interest be*428longs to tbe plaintiff. Tbe trial court beld that tbe foregoing deed conveyed tbe interest of tbe grantors in tbe lock and that plaintiff never acquired any title to tbe two-tbirds interest conveyed under tbe deed of March 14, 1870. Tbe map on page 429 shows tbe location of tbe dam, main channel of tbe river, tbe water power, canal, tbe race, and tbe lock.

Harvey Jones, Gilbert Jones, and Abigail Bassett were tbe heirs at law of Harvey Jones, Sr., and are tbe common grantors of all persons claiming title to tbe land in controversy. In 1847 (Terr. Laws 1847, p. 104) tbe legislature of Wisconsin empowered Harvey Jones to erect tbe dam in question. That act provided:

> “Said dam . . . shall contain a suitable and convenient lock . . . for tbe passage of boats, barges and water craft; and tbe proprietor of said dam shall maintain said lock and shall attend tbe passage of all such boats, barges and water •craft through said lock free of all charges to tbe owners thereof; and if such lock shall not be kept in repair . . . and suitably attended . . . said Harvey Jones and bis associates, their heirs and assigns, being in possession of tbe works hereby authorized, shall pay to any person or persons who may be injured by delay all damages . . .”

Tbe lock was completed some time after 1849, and was operated in connection with tbe dam from the time of its completion until 1862, when tbe government canal was built, which has ever since been used for tbe passage of boats: After tbe erection of tbe canal by tbe federal government tbe Jones lock fell into disuse, and from 1884 to 1900 it was gradually filled up.

It will be observed that tbe Bassett deed of September 18, 1867, conveyed (1) tbe dam across tbe south channel of tbe Fox river, known as tbe “Neenah dam,” together with an easement over tbe land occupied by tbe owners of tbe dam for tbe purpose of keeping tbe same in repair; (2) all right, title, and interest of tbe grantors in and to tbe water beld and water power created by said dam, with certain exceptions not here material; and (3) tbe land occupied or to be occupied by tbe *430■canal and race used for carrying water from said dam to tbe mills and manufactories of Neenab to tbe width of 100 feet, as specified in said plat.

*429

*430Tbe trial court beld that tbe provision of tbis deed conveying tbe canal and race was broad enough to and did include tbe lock, because tbe lock was in reality a part of tbe canal. In opposition to tbis view counsel for plaintiff urge that there was no physical connection between tbe lock and tbe canal; that tbe canal and race were specifically named in tbe conveyance, and if it bad been tbe intention to convey tbe lock it would have been specified; that it was only tbe canal and race, ■carrying water for power purposes and manufacturing establishments, that were conveyed by tbe deed; that tbe lock bad fallen into disuse at tbe time tbe conveyance was made; and finally, that tbe width of tbe race and canal described in tbe conveyance was correctly stated as 100 feet, while tbe lock was only thirty-five feet in width. If tbe lock was a separate and distinct entity, completely dissociated from tbe canal, dam, race, and water power created thereby, at tbe time tbe conveyance of 1867 was made, tbe position of tbe plaintiff, that it was not conveyed with tbe canal and race, is unanswerable. Tbe canal and race were specifically mentioned; tbe lock was not. Their width was set forth as being 100 feet, while tbe lock was but thirty-five feet wide. Tbe only canal described was one used for carrying water for hydraulic purposes. Tbe lock proper bad neyer been used for any such purpose, although tbe upper part of tbe canal or channel in which it was located bad been so used. If, however, tbe lock was actually a part of tbe canal, then it was conveyed. When tbe improvement authorized by tbe legislature was completed, tbe dam, tbe race, tbe canal, and tbe lock were all necessary to tbe development of tbe water power. Tbe lock was necessary because tbe legislature would not permit navigation to be obstructed by a dam unless suitable provision was made for tbe passage of boats. It is true that in 1867 tbe lock bad not been used for tbis purpose for about five years because of tbe *431improvement made by tbe general government. It is also ■true that tbe lock bad been maintained up to that time, and for a long time thereafter, and tbe state in all probability might compel its maintenance now, for that matter, or require the construction of a new one in its stead. Tbe word “lock” does not seem to be defined by tbe compilers of law dictionaries and is not found in Words and Phrases. Recurring to the definition given by lexicographers we find tbe following:

> “A barrier to confine tbe water of a stream or canal; an inclosure in a canal, with gates at each end, used in raising or lowering boats as they pass from one level to another.” Cent. Dict.

Webster gives tbe same definition, and that given in tbe Standard Dictionary is not materially different.

Tbe main thing here is to arrive at tbe intention of the grantors as expressed in tbe deed. A lock is almost invariably used in connection with a canal and forms part of it. It cannot exist except in connection with a canal or some equivalent situation. Tbe words “used for carrying water,” etc., found in tbe conveyance we are considering, do not limit tbe word “canal” as found therein, but are merely descriptive of tbe identity of tbe particular canal meant to be conveyed. Prom tbe situation as it appears to us tbe canal and race conveyed begin immediately above tbe dam, and tbe canal includes tbe passageway for water through tbe locks, as well as through what might be termed tbe canal proper. In other words, tbe artificial channels that divert tbe water from tbe river at tbe dam and turn it into tbe river below tbe dam constitute tbe canal. Tbe rights of tbe parties under this deed 'of conveyance must be fixed as of tbe date upon which it was made, and tbe subsequent filling up of tbe canal could not operate to divest any title acquired under tbe deed of 1867.

Another consideration that confirms tbe view taken is tbe fact that tbe arm of tbe canal leading to tbe lock bad for many years been one of tbe canals or races leading to a flour mill operated by water power. It is true tbe lock was beyond such *432mill, but a portion of tbe canal above tbe beadgates bad been used for tbe dual purpose of furnishing power and serving as a channel for tbe passage of boats. Without tbe use or control of tbe locks tbe water power conveyed might be largely impaired. Tbe gates of tbe lock, or at least one of them, bad to be kept closed when not in use, in order to conserve tbe water and prevent its waste. If this lock bad been more directly connected with tbe canal it would not be seriously claimed that it was not a part of it. Considering its utility for bold-ing and utilizing tbe water for hydraulic purposes and that it-originally constituted a necessary component part of tbe water-power plant, absolutely requisite to its construction in tbe first instance and to its maintenance for some time thereafter, and tbe further fact that tbe owner of such water power might long after tbe year 1861 be compelled to operate such lock or else to construct and operate a new one, we conclude that tbe circuit court was correct in bolding that a two-tbirds interest in tbe lock passed by tbe conveyance of September, 1867.

Tbe plaintiff claimed title to tbe remaining one-third interest in tbe lock under a quitclaim deed from Gilbert Jones dated March 20, 1893. Tbe defendant contends that at this time Gilbert Jones bad no interest in tbe lock, by. reason of a, conveyance executed by him on February 19, 1881, to tbe defendant, which conveyed “all and singular tbe undivided one-third of tbe Neenab dam and appurtenances and dam landings and tbe two mill races or canals at Neenab and tbe water' power or hydraulic power furnished by said dam, it being intended hereby to convey tbe entire interest in all said property which descended to said Gilbert 0. Jones from Harvey Jones and which has not heretofore been sold and conveyed, . . .” with certain reservations not material. Tbe trial court held that tbe Gilbert Jones interest in tbe lock did not pass under tbe deed of February 19, 1881, and that plaintiff' acquired title thereto under tbe deed of March 20, 1893. It will be observed that tbe deed of 1881 conveyed a one-third. *433interest in tbe dam and appurtenances and a like interest m and to tbe two mill races and canals and tbe water power furnished by tbe dam. The deed then recites that it was tbe intention of tbe grantor to convey bis entire interest in all of said property. Tbe circuit court held that this conveyance did not carry a fee in tbe lock, but simply an easement to carry water through and to operate tbe same, and that when tbe lock was no longer used for tbe purpose for which it was intended it reverted to tbe grantor, and that plaintiff acquired title thereto from such grantor under tbe deed of March 20, 1893. Tbe only material difference between tbe recitals in this deed and tbe one under which tbe two-thirds interest was held to be conveyed was that the 1881 deed did not specifically convey tbe land occupied by tbe race, while tbe other deed did. Tbe conveyance of tbe canal having included tbe lock, it is apparent, that tbe court overlooked tbe provision of tbe deed whereby the grantor expressed bis intention “to convey tbe entire interest in all of said property” which be then owned. Tbe grantor owning tbe land which necessarily was an essential part of tbe canal, such entire interest would as a matter of course include tbe fee and not a mere easement. Moreover, we think that a conveyance of a mill race or canal carries something more than an easement or right to use tbe same for water-power purposes. Tbe bed and banks are part of tbe canal and should pass with tbe conveyance of it. *Bishop v.*Seeley, 18 Conn. 389, 394; *Schuylkill N. Co. v. Berks Co.*11 Pa. St. 202, 203; *Genesee Valley C. R. Co. v.*Slaight, 49 Hun, 35, 1 N. Y. Supp. 554. It follows that tbe trial court erred in bolding that tbe plaintiff was tbe owner of and was lawfully entitled to the possession of the one-third interest in tbe lock.

There is still a third conveyance, under which tbe defendant claims title to tbe southwesterly one-half of tbe lock,' which was executed May 13, 1865, and ran from Gilbert C. Jones and Willard Jones to Abigail Bassett. In view of the *434conclusion readied in reference to the other deeds it is unnecessary to consider this one. The court below found that it conveyed title to the southwest boundary line of the lock and not to the center of it, and we think the trial court was right in reaching this conclusion.

The title to certain other parcels of land is in controversy in this action, but no complaint is urged as to the disposition made of such lands by the circuit court, and as to them the judgment should stand.

*By the Court.*— The judgment of the circuit court is affirmed on plaintiff’s appeal, and is reversed on the appeal of the • defendant, and the cause is remanded for further proceedings according to law.

Kerwin, J., took no part.