Whittelsey v. Porter , 82 Conn. 95 ( 1909 )

Upon the facts above stated the plaintiff claims that the water-privilege described in the lease of July 2d 1900, from the Connecticut River Company to Frank H. Whittelsey, became a right inseparably annexed as an appurtenance to the mill property; that as such an appurtenance it was conveyed by Whittelsey to Morley by the deed of the former of October 5th, 1905, and was reconveyed to Whittelsey by the mortgage back to him from Morley, of the same property on the same day; and that therefore neither Moore nor the defendant took anything by the attempted assignments of the water-privilege by the Whittelsey Paper Company to Moore, and by Moore to the defendant.

If the water-privilege is to be regarded as so annexed as an appurtenance to the mill property by the lease of July 2d 1900, it was reconveyed to Whittelsey by the Morley mortgage, even though it was not expressly named in the deed. 3 Washburn on Real Property (4th Ed.) p. 394; Green v. Collins, 86 N.Y. 246. If from the use of the words, "with appurtenances thereof," in the habendum, and certain terms in the description of the property mortgaged, the water-power and privileges cannot properly be said to have been expressly granted, the law will imply a grant of such rights and privileges connected with the described property as are necessary to the reasonable enjoyment of it for the purposes for which it was conveyed, and which the mortgagor had the power to grant. Collins v. Driscoll, 34 Conn. 43,47; Bushnell v. Proprietors of Ore Bed, 31 id. 150, 158. "A grant of a thing will include whatever the grantor had power to convey which is reasonably necessary to the enjoyment of the thing granted." 3 Washburn on Real Property (4th Ed.) p. 394.

Was the water-privilege in question so annexed as an appurtenance to the mill property that it passed as an incident to it, under the Morley mortgage?

The word appurtenant means "attached to" or "belonging to," and in law the term appurtenance generally means something appertaining to another thing as principal, and passing as an incident to such principal. Harris v. Elliott, 10 Pet. (U.S.) 25, 54; Anderson's Law Dict. That incorporeal rights not before attached to a particular property may, when they are to be used in connection with it, be made appurtenant to it, when such is the intent of the parties, by a separate grant of such rights, is unquestionable.Williams v. Wadsworth, 51 Conn. 277, 305; Bissell v. Grant, 35 id. 288, 296. "Although it is an undoubted proposition, that whatever is properly appurtenant to the principal thing granted passes with it, it is not always easy to apply the term so as to determine . . . whether the thing under consideration is appurtenant or not." 3 Washburn on Real Property (4th Ed.) p. 394. Whether, in a particular case, a right or privilege acquired by a separate grant is such that by subsequent conveyances of the property upon which it is to be exercised it will pass as an incident or appurtenance thereto, must necessarily depend largely upon the character of the right as originally granted; the nature of the property upon which it is to be exercised; the need of such a right for the full enjoyment of that property so conveyed; and the intention of the parties as shown by the language of the instrument creating the right, read in the light of the surrounding circumstances. Russell v. Heublein, 66 Conn. 486,491, 34 A. 486; Chappell v. New York, N. H. H.R. Co.,62 Conn. 195, 204, 24 A. 997; Bissell v. Grant, 35 Conn. 288;Strong v. Benedict, 5 id. 210, 219.

The particular privilege under consideration was created by the grant or lease of the Connecticut River Company to Frank H. Whittelsey July 2d 1900, and was one which could be granted as strictly appurtenant to the mill property, which Whittelsey then owned. Smith v. MoodusWater Power Co., 35 Conn. 392, 401; Frink v. Branch, 16 id. 260; Kennedy v. Scovil, 12 id. 317, 324; Strong v. Benedict, 5 id. 210. It was granted with words of inheritance, and for a term which made it, though technically a chattel real (Flannery v. Rohrmayer, 49 Conn. 27), yet practically a fee defeasible only upon failure to perform certain conditions.Brainard v. Colchester, 31 Conn. 407, 410.

The privilege granted is expressly described in the lease as a right "to draw and receive from the canal and use in and upon the water lot or land," described by metes and bounds, which then belonged to Whittelsey, the described flow of water, and the facts found and the language of the lease show that the privilege granted was to be used for power, and other manufacturing purposes.

The property upon which the privilege was to be used, is called in the lease a "water lot." It was mill property. It had been used as a mill for fifty years or more, and during that period had been operated by power procured from the canal, by contract with the Connecticut River Company, and in the deeds of the mill property to Whittelsey, which are referred to in his deed to Morley, the then existing water-privilege from the canal is described as "connected with" and as "appurtenant to" the land conveyed.

The facts found show that the privilege granted is indispensably necessary to the operation of the mill, and that without it the value of the property would be reduced two thirds.

The intention of the parties to the lease, that the privilege granted should go with the land, is clearly shown by the language of the lease itself, which, while it grants an assignable privilege, expressly limits the enjoyment of it to the land described. It is shown, too, by the acts of the parties. The plaintiff is the wife of the lessee of the water-privilege, and is now operating the mill by means of it, under a claim of right under the decree of foreclosure, and the Connecticut River Company, by receiving rent from her, recognizes her right to do so, notwithstanding the attempted assignments to Moore and the defendant. From the fact, among others, that the mortgage from Morley to Whittelsey was to secure the payment of $75,000, probably the whole or a large part of the purchase price of the mill property and water-privilege, and that the conveyance to Morley b Whittelsey and the mortgage back were apparently one transaction, it is difficult to conceive that it was not Morley's intention, if his intention in the matter is at all important, to include the water-privilege in the mortgage. It is hardly to be believed that he thought he was securing to Whittelsey the payment of $75,000, by conveying to him the mill property, while he retained himself the means of operating it.

We reach these conclusions in the case: The lease from the Connecticut River Company was made for the benefit of the factory property, and the water-privilege granted by it was, by the mortgage deed from Morley, reconveyed to Whittelsey as an appurtenance to it. Smith v. MoodusWater Power Co., 35 Conn. 392; Frink v. Branch, 16 id. 260;Brown v. Thissell, 6 Cush. (Mass.) 254; Blood v. Millard,172 Mass. 65, 51 N.E. 527. Since neither Moore nor the defendant owned or possessed the mill property or any part of it, neither could make any use of the water-privilege. The attempted assignments to them of the water-privilege carried no interest in the land, and they had no right to redeem under the plaintiff's mortgage. The water right was not severable from the land, and the assignees therefore took nothing by the attempted assignments. They were wholly invalid. Washburn on Easements and Servitudes (3d Ed.) p. 36; Cadwalader v. Bailey, 17 R. I. 495,503, 23 A. 20; Phillips v. Rhodes, 7 Met. (Mass.) 322, 324;Garrison v. Rudd, 19 Ill. 558, 564.

There is error, the judgment is reversed and the case remanded with directions to render judgment for the plaintiff, in accordance with the views above stated.

In this opinion the other judges concurred.