October 5, 2012

Bowman & Cockrell v. Dillion, Rockcastle, 1903

BOWMAN & COCKRELL v. DILLION.

COURT OF APPEALS OF KENTUCKY

74 S.W. 240; 1903 Ky. LEXIS 490; 24 Ky. L. Rptr. 2382

May 6, 1903, Decided

PRIOR HISTORY:  [**1] 

Appeal from Circuit Court, Rockcastle County.

Action by W. R. Dillion against Bowman & Cockrell. From a judgment for plaintiff, defendants appeal.

DISPOSITION: Affirmed.

COUNSEL: Beckner & Jouett and C. C. Williams, for appellants.

J. W. Brown and J. W. Alcorn, for appellee.

JUDGES: HOBSON, J.

OPINION BY: HOBSON

OPINION

 [*240]  HOBSON, J. On July 17, 1883, the Livingston Coal Company conveyed to Denny, Faulkner & McLean four acres of land lying at the junction of Round Stone creek and Rockcastle river, on the east side of Round Stone, and the north side of the river, fronting on the river 26 poles and 19 links. The deed also contained this provision: "The second party is to have the joint use of the bank on both sides of Rockcastle river above the mouth of Round Stone up to where the line of the first party crosses said river for the purpose of tying logs and rafts to the trees on said bank. This privilege is to be used and enjoyed in connection with and jointly with the mill seat now occupied by Roberts, except that the second party is to have the whole and exclusive use of the banks fronting on Rockcastle river and on the land herein conveyed to them from the water's edge at the junction of Round Stone and Rockcastle river up said river 26 poles  [**2] and 19 links to the corner of the land of the second party." The property conveyed by this deed passed through several hands and is now owned by appellants, Bowman & Cockrell, who operate a sawmill on it On the opposite side of Round Stone, and just below them on the river, is the mill of appellee, W. R. Dillion, who purchased his property in the year 1893 from Margaret Sambrook, who also claimed under the Livingston Coal Company, by a deed subsequent to that of Denny, Faulkner & McLean. Dillion owned 50 acres of land lying on the river above appellants' mill; also a strip of land 150 feet wide on the south side of the river, and adjoining this tract. Appellants put a boom in the river on the south side, opposite this 150-foot strip, and appellee filed this suit to enjoin them from maintaining it. Their right to maintain the boom depends upon the  [*241]  meaning of the clause in the deed to Denny, Faulkner & McLean, above quoted. It is shown that the mill seat occupied by Roberts is no longer occupied as a mill seat. It is also shown that, owing to the size of Rockcastle river, it is difficult to raft logs down it, and that the most practicable way to get them down is to float them down loose  [**3] on a tide, and catch them in a boom. The boom, as maintained by appellants, was put in by Denny, Faulkner & McLean soon after they got the property, and was maintained by them until they failed, about the year 1890. The boom afterwards broke, but parts of it remained. While it was in this condition, Dillion bought it from Mrs. Sambrook, in 1893. After this, appellants bought the Denny, Faulkner & McLean property, and repaired the boom, and have since maintained it. While the proof shows that all the parties have had booms since about the year 1884, it is not shown that there were any booms in the river at the date of the deed from the Livingston Coal Company to Denny, Faulkner & McLean, or that there had been any before that. On the contrary, we think the proof shows that up to this time the logs were brought down in rafts. On these facts, the question to be determined is, what is the effect of the grant of the joint use of the bank on both sides of Rockcastle river for the purpose of tying logs and rafts to the trees on the bank. It is conceded by appellee that appellants have the right to tie their logs and rafts along the bank in front of his property. He only disputes their right  [**4] to maintain the boom there. In determining the meaning of these words, the rest of the clause must be, looked to by the court. The privilege thus conveyed, it is stipulated, is to be used and enjoyed jointly with the mill seat occupied by Roberts, except as to the bank in front of the land conveyed. The tying of logs and rafts to the trees along the bank could be used and enjoyed jointly by two parties, but the privilege of maintaining a boom would not naturally be conferred jointly on two mill owners. And as the practice had been to bring down the logs and rafts and tie them to the trees, the natural meaning of the language of the deed, when it conferred a privilege jointly with Roberts of tying logs and rafts to the trees on the bank, is that the grantor did not convey the right to maintain a boom, which is a very distinct right, and of much greater value than the mere right of using the bank to tie the logs and rafts to. This conclusion is fortified by the difference of language used in reference to the bank in front of the land conveyed to Denny, Faulkner & McLean. As to this, it is provided "that the second party is to have the whole and exclusive use of the bank fronting on Rockcastle  [**5] river, and on the land hereby conveyed to them." The whole and exclusive use of the banks is a very different thing from the joint use of the bank for the purpose of tying logs and rafts to the trees on it. We therefore conclude that the circuit court properly held that appellants, under their deed, did not acquire the right to maintain a boom in the river opposite the 150-foot strip. The question is not before the court here as to what may be their rights as to the bank in front of their own land, not unreasonably interfering with the free use of the river by others. The amended answer only elaborated the defense made in the original answer. Considering it as filed, we see no reason, under all the evidence, for disturbing the judgment. The proof fails to make out a case for the operation of an estoppel.

Judgment affirmed.

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