App. Div.]

Fourth Department, November, 1911.

"And it is further agreed that said party of the second part shall at all times contribute pro rata with each of the other parties using the same towards the necessary expense of keeping in repair and maintaining or rebuilding the wheel and fixtures connected therewith in said Stone Mills or Jewett building, used to give said power to said party of the second part."

These covenants in the four deeds are substantially alike, excepting that in the Zalinski deed there is no clause providing that he shall contribute to the expense of keeping the wheel and fixtures in repair, and also the provisions reserving to the first party the right to go on premises and repair the shaft at the expense of second party are omitted from the Johnson deed. Between the Phoenix mills property, whose lot extended from Fall street southerly to the center of the Seneca river, and the parcels of land which are the subject of this litigation, there had been conveyed certain premises fronting on Fall street, known as the Holley or Pew premises, but the southerly line of these properties was north of the tail race, so that the Phonix Mills Company owned the lands in the rear of the Holley or Pew premises to the center of the Seneca river, and the lands which are the subject of this litigation were connected by this strip of land in the rear of the Holley or Pew premises with the Phoenix mills or Jewett building, so that the Phoenix Mills Company could transmit power over its own lands from its water wheels in the Phoenix mills building to any structure which might be erected on the lands described in the complaint. After receiving their deeds, Zalinski, Desky and Howe erected buildings upon their respective lots which extended over the tail race, and later a building was erected on the Johnson lot, but it only extended to the tail race.

Subsequently, by various mesne conveyances, the remaining property of the Phoenix Mills Company was transferred, until finally, in October, 1881, Ellen B. Partridge became the owner of it. Prior to and at that date power had been conveyed from the water wheels in the Phoenix mills or Jewett building to the Howe premises, and thence by a shaft through the Desky premises to the Zalinski premises, and it was being used to propel machinery located in the basement of the building on the Howe lot, and also on the Zalinski property, but power was not used

Fourth Department, November, 1911.

[Vol. 147.

on the Desky premises, and it was never used on the Johnson lot, the power to these buildings being conveyed by a wire cable which ran over wheels, but which was evidently accepted by the owners of the properties described in the complaint in lieu of a shaft for such transmission as provided in the covenants.

Mrs. Partridge continued to own these premises until August, 1901, when she was adjudicated a bankrupt, and on the sale of the Phoenix mills property by the trustee in bankruptcy the defendants Clary became the owners of the property, the defendant Geneva-Seneca Electric Company, which never answered in this case, occupying a portion of the Phoenix mills property and having power under a lease previously made with Mrs. Partridge.

Mrs. Ellen B. Partridge continued to furnish power under the covenants described in the deeds above referred to over these cables without any objection until July 24, 1889, when she refused longer to furnish it, and absolutely repudiated the covenant, and she never did anything to repair or maintain the cable for transmitting the power after that time although power continued to be conveyed by her to the lots in question up to December, 1889, when the cable became out of repair so that power could not be transmitted over it, and the cable finally fell and was never repaired, and no power has been transmitted in any manner to these buildings since that time from the Phoenix mills.

The plaintiff purchased the Johnson lot in August, 1892, the Desky lot July 6, 1903, the Zalinski lot July 2, 1907, and the Howe lot April 1, 1908.

After the cable got out of repair, Mrs. Gould, plaintiff's predecessor in title to the Howe property, demanded of Mrs. Partridge that she furnish power, which she refused to do, and Mrs. Gould commenced an action in the Supreme Court against Mrs. Partridge, defendants' predecessor in title, to enforce the covenants in the Howe deed, and after Mrs. Partridge was adjudicated a bankrupt the matter was liquidated, and Mrs. Gould's executors received damages from the Partridge bankrupt estate for her failure to transmit power according to the covenants in the Howe deed.

The defendants Clary Brothers, when they purchased the

App. Div.]

Fourth Department, November, 1911.

Phoenix mills properties, March 29, 1905, had knowledge of the covenants in the several deeds above referred to, and in 1908 plaintiff, by written notice, demanded that they furnish power to his properties in accordance with the terms of the covenants in the Johnson, Howe, Desky and Zalinski deeds, and a similar notice was served on the defendant GenevaSeneca Electric Company, but no attention was ever paid to said notices, and no power has ever been furnished to plaintiff's said premises from the Phoenix mills property by the defendants, or either of them, and plaintiff brings this action, and asks to have the covenants above referred to construed, and that defendants Clary be required to transmit power to his properties in accordance with the terms of these covenants, and for damages for their failure to furnish power heretofore, and defendants deny their liability to perform the covenants in said deeds, claiming that they are personal covenants of the Phoenix Mills Company, and that there is no obligation on their part to transmit the power to plaintiff's lands, although they concede that he is entitled to power from the wheels in the Phoenix mills, but claim he must come there and get it.

Defendants also allege an abandonment by the plaintiff and his predecessors in title of whatever rights they had to the water power because of their neglect to contribute to the expense of repairs to the water wheels, shafting, dam, etc., and that plaintiff and his predecessors in title have allowed various articles to be deposited in the tail race, in violation of the terms of the covenants in the deeds, so that the flow of water has been hindered and thrown back upon the water wheels, and because of that fact plaintiff cannot enforce said covenants, and that defendants are entitled to damages for the said obstructions.

A decision of this case involves the construction of these various covenants contained in the Johnson, Howe, Desky and Zalinski deeds. I am satisfied that these clauses in the several deeds must be construed as covenants running with the lands which were transferred by the Phoenix Mills Company to Messrs. Johnson, Howe, Desky and Zalinski, plaintiff's predecessors in title, and that they related to the enjoyment by them of the lands they purchased of the Phoenix Mills Com

Fourth Department, November, 1911.

[Vol. 147. pany, that the power covenanted to be furnished by the Phoenix mills to the various parcels of land was a very valuable part of the property purchased for the consideration paid by plaintiff's predecessors in title, and that these covenants not only bound the Phoenix Mills Company, but were equally binding on any subsequent owners of that property, including the defendants, and that they inure to the plaintiff as successor in title of Johnson, Howe, Desky and Zalinski.

By these transfers the Phoenix Mills Company not only granted to the purchasers the four lots in question, but also water power to run machinery that should be placed in the basements of buildings to be erected on them. These covenants to furnish water power in the manner specified in the various deeds from the estate still belonging to the Phoenix Mills Company were to be for the benefit of the estate conveyed and they created an easement in the remaining properties of the Phoenix Mills Company on the north side of the Seneca river for the benefit of the property conveyed - and they inured not only to the original purchasers, Johnson, Howe, Desky and Zalinski, but also to their successors in title, including the plaintiff in this action. (Nye v. Hoyle, 120 N. Y. 195, and cases cited; Gould v. Partridge, 52 App. Div. 40.)

The evidence is clear and satisfactory that as soon as the purchasers of these parcels of land had completed their buildings, defendants' predecessor in title, the Phoenix Mills Company, at its own expense, strung a cable and transmitted power from its mills to some of these properties, and that power continued to be thus transmitted until the latter part of the year 1889, and that every owner of the property since these lands were sold, right down to and including defendants' immediate predecessor in title, thus furnished power, so that however obscure and ambiguous the language of the covenants may be, the original parties to the covenants placed upon them a practical construction which cannot be ignored by this court. The intention of the original parties is controlling, and by their acts they construed these covenants to mean that the Phoenix Mills Company, defendants' predecessor in title, was to carry the power to the lands in question, and install some device for that purpose, and there is no evidence anywhere to justify a

App. Div.]

Fourth Department, November, 1911.

finding that it was the intention that the purchasers of the lands, Johnson, Howe, Desky and Zalinski, and their successors in title, should go to the water wheels in the Phoenix mills for their power. The construction placed upon these covenants by the parties themselves was that the Phoenix Mills Company was to take the power to these premises, and not that the purchasers of the lands and their successors in title were to go to the Phoenix mills water wheels and get their power. This practical construction by the parties, which is shown by the fact that the Phoenix Mills Company did erect and maintain this cable from its mills to the properties in question, for the purpose and by means of which it transmitted power, shows clearly and conclusively that the original parties intended that the Phoenix mills were to carry the power to the property sold, and not that the purchasers of the lands were to go to the mills for the power, and that practical construction placed upon these covenants by the parties themselves, must be controlling here. (Carthage Tissue Paper Mills v. Village of Carthage, 200 N. Y. 1; City of New York v. N: Y. City R. Co., 193 id. 543.)

The rights in the deeds in question with reference to furnishing power were acquired by the purchasers of the land by grant, and they cannot be extinguished by non-user. (Heughes V. Galusha Stove Co., 133 App. Div. 814; Welsh v. Taylor, 134 N. Y. 450; Conabeer v. N. Y. C. & H. R. R. R. Co., 156 id. 474; Snell v. Levitt, 110 id. 595.)

Mrs. Partridge repudiated her obligation to convey power in July, 1889, and actually ceased to convey it shortly before the fire in 1890, and there is not sufficient evidence to justify a finding that either the plaintiff or any of his predecessors in title ever repudiated or abandoned these water rights, but on the contrary, the power was transmitted by defendants' predecessors in title up to the time the cable gave out, and it was used in some of the properties described in the complaint, and after the failure of the cable one of the plaintiff's predecessors in title, the owners of the Howe lot, made every effort to compel Mrs. Partridge, defendants' predecessor in title, to furnish power, even to the extent of bringing an action in the Supreme Court for that purpose.