Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1903-10-09

w uc ueFSlOpeu ny Gilo SFduUOl, lls
successors and assigns. and as a part
OF the premises hereby conveyed the
grantor, it's successors and assigns,
will in perpetuitv keep up and main
tain said dam and water power and
deliver to the graDtOr, it's successors
and assigns the power hereby con-
veyed as herein provided, and power
hereby conveyed and the obligation TO
develop ard maintain and deliver the
same in perpetuity as herein pro-
vided shall be perpetual charge and
lien upon the whole of said water
power, and the lands, riparian, and
tOwage right constituting the same
or appurtenant thereto, whether now
owned or hereafter acquired by said
grantOr, it's successors and ASST gns. -
Organized to Improve Water Power.
We understand from said inStru-
ment and the statement of facts
submitted, that the Consolidated
Water Power company is a corporation
organized under Wisconsin statutes
having authority to improve the
natural water power in the Wiscon-
sin river at Grand Rapids by means
of dam or dams and to utilize such
power and to dispose of the same by
sale or lease, transmitting such
power by electric current or other
wise; that at the time of executing
said instrument it's dam and power
plant was in process Of construction
and that at the time of the first
meeting of the board of review such
dam and plant was still SO far in
complete that said power company
was not ready and had not begun to
furnish power under and pursuant to
such contract; but would soon be
ready to do so and was financially able
to perform it's contract, the security
for such performance reserved in
said instrument being adequate as a
guaranty of such performance; that
the Grand Rapids Milling company
is an ordinary private manufacturing
corporation; that the two lots con-
yeyed to it mentioned in said in
Strument constituted no part of the
land of the grantOr essential for the
maintenance or corporation of it's dam
or power plant; that said two lots are
"away from the river" from which it
is inferred that it would be impracti-
cable to supply the power Undertaken
to be furnished in any way except by
electric current; that the milling
company has so erected and con-
structed it's buildings and machinery,
that such power will not be used on
the lots conveyed. but on adjoining
lots; that the two lets conveyed are of
little value unless the right to the
use of power acquired under said in
strument is considered as appurten-
ant to such lots and as an element of
their value, in which case the value
would equal or exceed, the con-
Sideration stated in the instrument
(Sl8,000).
A Case in Point
The question first presented is
whether the right to be supplied with
and to use 125 horse power, acquired
by the Milling company under said
instrument may legally be considered
as an element of value in the assess
ment Of said lots and 5. AS we
understand the decision of the Su-
preme Court in Spensley VS.. Valentine,
81 Wis. 154, this question may depend
on whether such right is or is not in
legal contemplation appurtenant to
those lots. The case cited seems to
be authority for the proposition that
the fact that the grantee Of the
right has not yet come into the bene-
ticial use and enjoyment of the
same does not prevent it from being
appurtenant to the real estate. Such
facts affect only the value of the
right.
Right Determined from Contract.
Whether such right is appurtepant
10 the lots conveyed must be de-
termined largely from the terms Of
the contract between the parties as
evidenced by the instrument men
toned. The provision, 'that as a
part Of the premises hereby conveyed,
the grantor, its successor and assigns
W | in perpetuity keep up and main
| tam said dam and water power and
deliver to the grantee, its successors
and assigns the power hereby conveyed
as herein provided" may perhaps be
taken as evidence that the parties
intended to make such right ap.
purtenant to the land. If this pro
vision was not intended to accomplish
such Intention, it would seem to
serve no purpose whatever. 1t is
true that formal affirmative Gov
enant to keep up and maintain the
such power, is not elsewhere con
tanned in the instrument: but the
obligation to do 50 clearly implied
from other provisions therein, so that
such affirmative covenant included
in The clause quoted above is unncc
cesSary. If such clause contained
such covenant and nothing more, its
insertion would not be especially