#### Colt, Respondent, vs. Paulson, Appellant.

*February 2*

February *21, 1911.*

*Deeds: Construction: Extrinsic evidence: Water power: Injunction: Judgment: Determination of matters not in issue.*

1. To aid in tiie interpretation of a deed granting certain rigMs relative to a mill-dam, pond, and the nse of power, oral evidence of extrinsic facts and circumstances existing at the date of the grant, including the location, size, and description of the dam, mills, waste-gates, etc., was admissible.

2. In an action for an injunction compelling removal of a cofferdam built by defendant in a mill-pond and restoration of a waste-gate closed by him, and restraining the doing of such acts in the future, it was not error, upon granting such relief, to refuse to find and adjudge defendant’s rights in other, particulars with respect to the water power, when such adjudication was not necessary.

*215Appeal from a judgment of .the circuit court for Wau-shara county: Chas. M. Webb, Circuit Judge.

*Affirmed.*

For the appellant the cause was submitted on the brief of *Phillips & Hides.*

For the respondent there was a brief by *George B. Hecmey*and *Perry Nishern,*and oral argument by *Mr. Nishem.*

TiMLiN, J.

In 1893 ’the plaintiff’s ancestor executed to defendant a warranty deed of certain riparian land. The deed contained the following:

> “Does also include in this sale the right also'to have the use of water from the mill-pond sufficient to run a forty-inch turbine water wheel, said wheel and the flume leading thereto being kept in good order by the party of the second part and the head or surface in said pond being controlled by the party of the first part, who agrees to keep the head of water at or as near as possible the ordinary stage kept to run the flour mill, except that either party shall have the right to draw down the pond to make repairs by giving three days’ notice, and said repairs to be finished without needless delay.”

Plaintiff brought this suit for an injunction to compel defendant to remove a cofferdam he had placed in the millpond, to restore a waste-gate.he had closed in the dam at a specified place, to remove a building he had so constructed as to interfere with plaintiff’s opening of a waste-gate in the dam, and to restrain the doing of such acts in the future, and for other relief. The, dam is across Pine river at the head of an island, and the plaintiff has a grist-mill at the south end of the dam, the defendant a sawmill at the north end thereof, both mills drawing for power on the pond formed by this dam, and both parties to the action acting under the instrument above mentioned and the former title of plaintiff’s predecessor in interest. The circuit court granted the relief sought with reference to the building which obstructed the opening of the waste-gate and the removal of the cofferdam and the restoration of the closed waste-gate or waste-way, and *216enjoined tbe defendant from thereafter building or maintaining any dams or obstructions in tbe mill-pond or placing or maintaining any material therein except when immediately necessary to enable tbe defendant to make necessary repairs on bis sawmill or tbe flume thereof, etc.

Error is assigned (1) because the court held tbe building by defendant of tbe cofferdam was unlawful; (2) because tbe court did not find tbe defendant owned tbe flume which be is required to maintain; (3) because the court admitted written evidence of plaintiff’s title and also extrinsic oral evidence of facts and circumstances to aid in tbe construction of tbe instrument from which tbe foregoing excerpt is quoted.

Tbe instrument in question does not grant to tbe defendant any right in tbe mill-pond or dam other than tbe use of tbe quantity of water mentioned with tbe privilege and duty of repairing or rebuilding bis water wheel and flume and tbe right to draw down tbe pond for tbe purpose of making such repairs without needless delay. He has no doubt a proprietary interest in tbe flume constructed or repaired by him, but not tbe exclusive ownership thereof as against tbe plaintiff. It was very proper to show what contiguous property tbe grantor of defendant and ancestor of plaintiff bad title to, including tbe dam and pond, when be made tbe conveyance in question, for tbe purpose of establishing that all which be did not grant away to defendant by tbe instrument in question remained bis property and became tbe property of plaintiff. So, also, that at tbe time of tbe grant in question there was a mill-pond, a dam at tbe bead of an island with a gristmill at tbe south end of tbe dam and a sawmill at tbe north end of it, tbe location, size, and description of tbe flume, tbe height of tbe dam, and tbe location and size of waste-gates as they then were, and sncb like extrinsic facts and circumstances, were proper to be shown by-parol evidence for tbe purpose of aiding in tbe interpretation of tbe written instrument. *Klueter v. Schlitz B. Co.*143 Wis. 347, 128 N. W. *21743; *Burton v. Douglass,*141 Wis. 110, 123 N. W. 631; *Lyman v.*Babcock, 40 Wis. 503; *Nilson v. Morse,*52 Wis. 240, 9 N. W. 1; *Ganson v. Madigan,*15 Wis. 144; *Prentiss v. Brewer,*17 Wis. 635; *Sawyer v. Dodge Co. Mut. Ins. Co.*37 Wis. 503; *Sigerson v. Gushing,*14 Wis. 527; 4 Wigmore, Ev. § 2470; *Nash v. Towne,*5 Wall. 689; *Merriam v. U. S.*107 U. S. 437, 2 Sup. Ct. 536.

It is suggested that the court erred iu refusing to find and adjudge that the defendant’s right to use sufficient water to run a forty-inch turbine wheel and his obligation to maintain the ñume and wheel is equivalent to ownership and not subordinate to the rights of the plaintiff. It was not necessary to so find. There is nothing adjudged against the defendant here or any of his rights except in the particulars in which the defendant is required to undo his former acts and refrain from like acts in the future, and as to these particulars the judgment appears to be right and should be affirmed.

*By the Gowrt.*— Judgment affirmed.