Lawson vs. Mowry.

felonious intent continuing, it is a fresh larceny in such other county. 1 Bish. Cr. Pr., § 59. There seems to be no distinction in principle between the two cases. We are referred to no direct authority on the precise question here, and probably there is none, as the offense is a statutory one, and such statutes are of comparatively recent origin. Unless we apply to the case the principle above stated, it would be difficult to convict any one for breaking or entering a moving car with intent to commit a felony.

This view sustains the instructions which the judge gave to the jury.

The judgment is affirmed.

LAWSON VS. Mowry.

March 28-May 10, 1881.

VENDOR AND VENDEE of Land. Rights of vendee of land abutting upon vendor's hydraulic canal.

While, by the law of this state, one who should receive from the owner of land through which a canal passes, a deed of a lot abutting upon such canal, which is a public highway, would ordinarily take to the center of the canal, yet he would take no right, as against the other riparian owners, to draw off the waters of the canal through his lot to a level lower than that of any part of the canal on his premises, for the purpose of creating a water-power. And where such a canal, and the lock at its foot, and the dam (in a natural stream above it) by which the water is turned into it, were constructed at great expense, by the original owners of the land, under authority of the legislature, for the purpose of creating a hydraulic power as well as a highway, and the lots between the canal and the natural stream below the dam were sold for a trifling consideration, without any expressed grant of water-power in the deeds, and the lots as platted were not intended to extend to the canal (though this was subsequently enlarged so that the lots in fact abutted upon it), and separate leases of the power were taken from the grantors by the grantees of the lots, and the rents continued to be paid for many years, and the lessors,

Lawson vs. Mowry.

with knowledge of the lessees, during that time, went to great expense in maintaining the dam, etc.: Held, that a lessee cannot resist payment of the rent under his lease on the ground that he had a right to the water as a riparian owner, and took his lease under a mistake as to his legal rights.

ERROR to the County Court of Winnebago County.

This action was brought to recover water rents alleged to be due under two deeds of indenture made December 26, 1857, between Charles Doty, Curtis Reed and Harrison Reed, of the first part, and the defendant, Spencer Mowry, as party of the second part, by which deeds the former demised and let to the latter twelve hundred superficial inches of water, to be taken from a certain canal and to be used on certain lots named in said deeds for a term of 99 years, renewable forever. The lots named in said instrument were lots 21, 22, 25 and 26, block 1, in the village of Menasha; and the annual rent reserved was at the rate of $20 per one hundred inches. The rents alleged to be due and unpaid were those which fell due on the 1st of January in 1876 and 1877. The plaintiff claimed as assignee of Doty and the Reeds. The answer was, in substance, that at the time of the execution of said leases Doty and the Reeds falsely claimed and represented to the defendant, and to his agent, one E. D. Smith (by whom said instruments were executed on defendant's part), that they were the owners of said water; that defendant and his said agent executed the instruments in reliance upon such representations; and that in fact neither said Doty and Reeds nor any of them had any right, title or interest in or to said water or any part thereof, or in or to any land along, over or upon which such water could run, nor had they or any of them ever subsequently acquired such right, title or interest. It is further alleged that if at the making of said instruments plaintiff's assignors had any right, title or interest in or to said water, they had only a defeasible estate or interest therein; that said water was a part of the navigable waters of Fox river and Lake Winnebago; and

that about January 1,

Lawson vs. Mowry.

1873, the government of the United States became, and had ever since continued to be, seized of said waters in fee, and had been in possession of the same to the exclusion of all other persons. For a further defense and by way of counterclaim, the answer then alleges that defendant is the owner in fee simple of lots 21 to 27 in said block 1 in the village of Menasha; that the northerly part of said block abuts upon a certain canal, which is a part of the Fox and Wisconsin River Improvement; that said canal is fed by a dam across the Fox river (a navigable stream) at said village of Menasha, at or near the outlet of Lake Winnebago; that said river forms the westerly boundary of said block; that the waters running through said canal are the navigable waters of said river and lake; that the canal runs from said dam, by and along said block, and the lots so owned by defendant, to Little Lake Butte des Morts, about one mile from the head of said canal; that some time in 1848 or 1849, plaintiff's said assignors built a damn at the place where such dam is now located; that thereafter, in 1849, said Doty, who claimed to be the owner of the premises now known as block 1, platted the same, laying it out as block 1 and dividing it into lots," which said block 1 abuts on said canal as aforesaid;" that about 1855, Doty and the Reeds conveyed all their interest in the said dam to the Fox & Wisconsin Improvement Company; that Doty, by deed or deeds duly executed, conveyed the lots so platted by him to defendant, or to those under whom he claims, without any reservation whatever as to said pretended rights of water or water-power; that, prior to the execution of the leases sued upon, the right to take and use the waters flowing through said canal had become vested in the grantees of said Doty; that, at the time of the execution of said leases, the Reeds had no interest whatever in any real estate adjoining or abutting upon said canal, but any interest they might have had prior thereto in any such real estate had been previously conveyed, and by subsequent mesne conveyances had come to defendant

Lawson vs. Mowry.

or to his grantors; that defendant's lots above mentioned, and all other lots in block 1, are situate between said canal and the natural channel of Fox river; and that defendant's said lots abut upon said river on the south and upon said canal on the north, and extend to the center of both the river and the canal. The answer then again alleges that defendant was induced to execute the leases by false representations of Doty and the Reeds as to their ownership of the water. It further. alleges that plaintiff claims the right under said instruments to enter upon the premises above mentioned, and particularly upon lots 21, 22, 25 and 26, and to take possession of said waters now naturally flowing through said canal, and through divers bulkheads and passage-ways over and through said lots, and to prevent such waters from flowing on said premises, which claim is founded upon certain stipulations in said instruments; that defendant and his grantors have for many years been in the actual possession of lots 21 to 27; that there are erected thereon factories and mills owned by and in the actual possession of defendant, and run by the water flowing through said canal and into the bulkheads or raceways of the defendant over and along said lots; and that plaintiff's said claim constitutes a cloud upon defendant's title, etc. Judg ment is therefore demanded that the instrument sued upon be adjudged void as between plaintiff and defendant; that defendant be forever released from the obligations thereof; and that plaintiff be forever restrained from seeking to enforce the same, etc. There was a reply in denial of the counterclaim.

The facts found by the court were substantially as follows: Prior to 1848, Charles Doty became owner of lots 1, 9 and 10 (by the government survey) in section 22, in the city of Menasha. By act of the legislature approved March 10, 1848, Curtis Reed, Charles Doty and their associates were authorized to build a dam across the north channel or outlet of Lake Winnebago, on a portion of said section 22, and to make use of the waters of said channel for hydraulic purposes. Under said.

Lawson vs. Mowry.

act, Reed and Doty built a dam abutting on lot 1 in section 22 on the south side, and on lot 9 in section 22 on the north side of said channel. They commenced this dam in 1848, and at the same time commenced to dig a race or canal to take water from said outlet, above the dam, and conduct it along north of said outlet to points convenient for mill-sites on the north side of the outlet. This canal or race was on lot 9; was from fifteen to thirty feet wide, and about three feet deep; and was, before the fall of 1859, extended to a point in or west of the west line of lot 27, block 1, mentioned in the pleadings. In 1849, persons who had bought of Charles Doty lots between this canal or race and said outlet, began to draw water from the canal for hydraulic purposes, under leases of water or of hydraulic power separate from their deeds of the land, "so far as the evidence shows under what claim they used water.' In May, 1849, Doty made and caused to be recorded a plat of the town of Menasha, which included part of said government lot 9. This plat is annexed to the findings as Exhibit G. In 1850 Doty made, and in 1852 he caused to be recorded, a further plat of land in lots 9 and 10, which plat is annexed to the findings as Exhibit H. The canal or racè above mentioned was excavated along the south side of a strip which on Exhibit G is marked "Reserved;" and it was made with steep banks, and so that the top of the south bank "came to or nearly to but somewhat north of the stakes driven by the surveyors to indicate the corners on the north line of the lots laid out in block one;" and the banks were about seven feet in perpendicular height from the bottom of said race. Charles Doty and Curtis Reed (who claimed some interest, with Doty and under his title, in said lots 1, 9 and 10 in section 22) constructed said dam, dug said race, and made and recorded said plats and sold lots therefrom, including lots 20 to 27 in block 1, claiming title to said lots under a written conveyance thereof to said Doty; and defendant claims said lots 20 to 27 by conveyances from Doty and his grantees. In 1849, the canal for