Daily globe., 1878-03-18
SUPREME COURT.

DUPRElM-E COURI.
DECISIONS OF CASES ARGUED 1T
THE JANUARYT TERN.
Watttdne ". East,nau and John L. Merriam,
appellants, as. The st. Anthony Falls Water
fo'eer Company, Respondent.
SYLLABUS.
court Of equity will not interpose to re-
sclnd contract on the sole ground of mutual
mistake OF feet, unless the parties can be re-
stored substantially to their situation at the |
time the contract was made. Neither will |
e4uA.y 30 Anterpose upon such ground, when
9ne 1act Is equally unknown to both parties, or |
ls doubtful from its own nature. |
OPINION.
The complaint shows that at the date of the |
agreement hereinafter mentioned, plaintiffs |
pose may be considered the owners of Nicollet |
Island, an Island in the Mississippi river above
and near the Falls of st. Anthony and tina
there's was there and still water power ap-
purtenant to said island. That defendant
owned Hennepln island, an island in said riv-
er below but near Nicollet Island and had
erected dam across said river between its
east bank and Hennepin Island, and up said
river to the west of and above the lower end of
Nlcollet Island, and plaintiffs had commenced
an actlon against defendant which was at issue
and pending, to have said dam abated. claim
ing that it destroyed their water power.
on the 2oth day of May, 1867, the parties
compromised and settled said suit, and adjusted
their respective water rights by agreement in
writing.
The defendants agreement important here is
as follows:
This agreement made and entered into this
2oth day OF May, 1867, by and between the
SAINT Anthony Falls Water Power company.
party of the first part, and William
~ Eastman and John l.. Merriman, parties of
the second part: Witnesseth, that said party of
the first part for divers good and valuable con-
siderations inuring from the id parties of the
second part to the said pa ty of the first part
and among them the compromise of certain
action now pending in the district court in and
Tor the county of Hennepin, wherein the said
parties OF the second are plaintiffs, and
ihe party of the second part < de-
fendant, doth hereby expressly concede to the
said parties of the second part, their heirs and
assigns, the right to draw from the Mississippi
river on the west side of the certain island in
said river. at and above the Falls Of St. An
Inohs' IN knoun IN as sad &c county, common
let island, below the suspension bridge, So
called, and In the deep water above the ledge
OF rocks in said river, commonly called the
HIPS, and to use on the said island below
the said bridge, in the manner, and in accord
ance with the specifications, limitations and
provisions hereinafter contained, and not other
wise, quantity of water sufficient to consti-
tute water power equal to two hundred horse
power. x :: and in order
that such water may be made available to said
parties OF the second part, the said party of
the trst part doth hereby give and grant unto
the said parties of the second part their heirs
rich To- ,c%r ,%,.,,
and use, IN the manner herinafter provided, a
| tunnel from said Nicollet island, through the
| island below said Nicollet island, commonly
called Hennepin island, all of the water SO to
| be drawn, as afo esaid. shall be used and
discharged through the said tunnel, which shall
extend from the point of said Nicollet island
where said water shall be used, to and through
said Hennepin island, to the lower esd of the
east side OF the said Hennepin island. :; <
The said tunnel < Z to be constructed
| in the sandstone strata under said Hennepin
| island, and on such a level through the entire
length as the agent of the party Of the first
part may direct, but not SO low as to prevent
proper drainage; it shall be constructed at the
expense OF the said parties Of the second part
| anu with all suitable precautions for its
safety and the safety of the prop
erty, rights and interests of the party Of the
| first par" . < ITO have and to hold
all and singular, the said rights and privileges
and property above described, and as above de-
fined and limited to the sole and only use, ben
eft and behoof of the said parties Of the Sec
| ond part, their heirs and assigns forever The
plaintiff S agreement is in a separate instru-
ment, but executed at the same time, and form
ing part of the same transaction. The provis-
ions of this agreement, important now, as
follows: This indenture, made this Goth day
of May, A. D. 1876, between Z = William
w. Eastman and John L. Merriam, x
parties of the first part, and the Saint Anthony
Falls Water Power company, :: party
| of the second part: Witneseeth, that the said
parties of the first part for, and in considera-
ton of the of one dollar, and other valuable
considerations to them paid by the said party
| Of the second part the receipt whereof is hereby
acknowledged, have granted bargained, con
veyed, released and quit-claimed, and by these
presents do grant, bargain, convey, release ana
quit claim unto the said party of the second
part, its successors and assigns for
ever, the following described real estate,
rights privileges and easements, situate and
being in county of Hennepin and State Of
entire water front land under water and
rigats to grants under water easements.
water power and privileges in the
Mississippi river, upon, about, of, or ap-
purtenant, or belonging to, or connected with
! lot No. one, in section No. twenty-three OF
twenty-four. west, commonly known as Nlcol-
let Island, and lying above the Falls
of St. Anthony, to the centre OF
the channels east side of said islanG
and also the rightand privilege of constructing
and maintaining any and all dams, piers
river, to the centre of both channels, opposite
the said island, or between the said island and
the said falls, that the said party of the second
| part, Its successors or assigns may deem proper
to the complete and full development of this
| and their other water power at the falls of
i m and oil oI, <>c
land as shall be flowed by water from such
dams, or other erections. and the right of flow
| ing the same, saving and reserving to the said
Eastman and Merriam, their heirs and assigns
the right to draw from the Mississippi river, on
| the west side of said island in and from the
| deep water above ledge of rocks in said river
commonly called the RIPS" and below the
suspension bridgs, so called, and to use on the
said island below the said bridge, quantity OF
| water sufficient to constitute water power
equal to two hundred horse power, in the man
| ner, and to the extent expressed and limited il
parties of the second part, and the said East.
man and Merriam, and bearing even date here
| WITH
| ITO have and to hold the said real estate
| rights, privileges, easements, and property, tc
the sole and only use, benefit and behoof Of the
said party of the second part, the st. Anthony
Falls Water Power company, its successors and
| assigns forever
1 The complaint shows further
THAT after the execution Of the said instru
ments, to-wit: in the summer of 1868, these
| plaintiffs commenced to construct the tunnel
provided for in said instruments, at the lower
end of said Hennepin Island. at the point and
on the level designated by the agent of the de-
partment, and in the manner prescribed in said
| instrument, constructed th- same through said
island and under the water between said island
! and said Nicollet Island and partly under said
j Nicollet island, until the line of said tunnel