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the effect of these conveyances is clearly shown by the provision contained in each deed imposing upon the parties as water lot owners, their heirs and assigns, the duty of forever afterwards keeping in repair the water power system, the expense thereof to be apportioned in accordance with the amount of water owned by each. By these deeds an easement was created in the lands on which dam No. 3 was located and over and across which the diverted water passed to the mill-race in favor of the water lots, and such easement thereby became appurtenant to the water lots. The easement in the land on which dam No. 3 was located was the right to mạintain that dam at the height to which it then extended, and the easement in the land over and across which the diverted water passed to the mill-race was the right to the unobstructed flow of water thus diverted by dam No. 3 into and through the east channel. We think it clearly appears from the provisions contained in the Cox and Bowen deeds, when considered in connection with the circumstances then surrounding the parties, that the Coxes and Bowen did grant to each other as water lot owners, and not otherwise, all the power developed by the dams constructed by them, and that their rights in the water power thus granted became appurtenant to the water lots owned by them, respectively.

The further question arises in this connection whether these parties, or their grantees, thereafter severed the easements thus created from the water lots to which they had been attached.

After interchanging the deeds to the water lots, and prior to May 6, 1845, the Coxes disposed of the north part of water lot i together with the right to draw 300 inches of water from the mill pond, and Bowen disposed of the south part of water lot 11 together with the right to draw 288 inches of water from the mill-race. After making these conveyances, and on May 6, 1845, the Coxes and Bowen again interchanged deeds, by which partition of the island and of all lands riparian to the east channel, other than the eleven water lots, was effected, Bowen thereby becoming the owner of the land on which dam No. 3 was located. In making this partition each party reserved to himself “all rights and privileges to and of the water in the Kankakee river, and every part thereof,” which he had at the time of making the deed. Thereafter the Coxes conveyed to James F. Alden, who in turn conveyed to Hiram O. Alden, all the lands to which the Coxes had obtained title in severalty under the partition deed of May 6, 1845, except a small tract on the east side of the east channel which they had previously conveyed to one Jeremiah Eastman, and by the same instrument conveyed water lots 2, 3, 6, 7 and 10 and the south part of water lot 1, "with all the privileges, and under all the restrictions and covenants,” contained in the deed of July 28, 1838, from Bowen to the Coxes. On October 25, 1845, Bowen conveyed to Walter and Aaron Hitchcock the north part of water lot 9 together with 72 inches of water to be drawn from the mill-race, and on January 25, 1848, conveyed to Caroline F. Roberts all the lands to which he had obtained title in severalty under the partition deed of May 6, 1845, and water lots 4, 5 and 8, the south part of water lot 9 and the north part of water lot 11, and all right and title of the grantor “to the water power, or use of the same, at or in said town of Wilmington, upon sections 25 and 36, or any part thereof, whether owned by them or accruing to them, or either of them, as appurtenant to the lots or lands owned by them, or either of them, bounded upon the Kankakee river or otherwise, excepting or reserving the right to draw and use at all times 864 inches of water at lot 11 of said water lots added to Wilmington.” On October 24, 1850, Caroline F. Roberts conveyed to Hiram 0. Alden all real estate conveyed to her by Bowen, except water lot 8 and the north part of water lot 9, which she reserved. This deed also conveyed to Alden all the right and title of the grantor “to

the water power, and the use of the same, at or in said town of Wilmington or upon said sections Nos. 25 and 36, or any part thereof, whether owned by her or accruing to her as appurtenant to any lands owned by her, saving and excepting her rights, appurtenances to lots Nos. 8 and 9." Thereafter, in 1853, Caroline F. Roberts conveyed to William McIntosh the south part of water lot 8 together with 144 inches of water to be drawn from the mill-race, and subsequently conveyed to her son the north part of lot 8, "with all the water power belonging to the same," and the son, in turn, conveyed said north part of lot 8 to McIntosh, together with 288 inches of water to be drawn from the mill-race. Thereafter Caroline F. Roberts also conveyed to her son the north part of water lot 9, "and all of the water power, and use of the same, belonging thereto," and he, in turn, conveyed a portion thereof to David C. Thompson together with 72 inches of water to be drawn from the millrace, and the remaining portion to M. D. Keeney together with “all water power, and the use of same, belonging to said lot, except that which has been conveyed to David C. Thompson and now owned by him.” After the conveyances from James F. Alden and Caroline F. Roberts to Hiram O. Alden, the latter by mesne conveyances obtained title to the north part of water lot 1.

By the conveyances above mentioned Hiram O. Alden became the owner of the island in the Kankakee river and of all land appurtenant to the east channel, except the small tract which the Coxes had conveyed to Eastman and except water lots 8 and 9 and a part of water lot ii. Subsequently Alden conveyed a part of water lot i, together with 864 inches of water to be drawn from the mill pond, to James F. Alden. On October 28, 1862, Hiram 0. Alden conveyed to Francis 0. J. Smith an undivided one-fourth interest in all real estate then owned by him in and about Wilmington, and on October 6, 1869, conveyed the remaining undivided three-fourths interest to the Kankakee Com

pany, together with "all rights to unsold water power on sections 25 and 36.”

It will thus be seen that up to and including the conveyance from Alden to the Kankakee Company, a portion of the water lots to which no specific allotment of water or water power had been made at all times accompanied the conveyance of the lands in which the easement in favor of the water lots had been created by the Coxes and Bowen, and it therefore cannot be successfully contended that provisions in the respective deeds specifically mentioning water power as being thereby conveyed indicate any intention to sever the easement from the water lots conveyed by such deeds.

By the conveyance from Alden to the Kankakee Company the latter became vested with the title to an undivided three-fourths of the major portion of Alden's island, including block 16, on which the east portion of dam No. 3 was located; also of certain lands on the east side of the east channel, including out-lots 20 and 21 of Alden's addition to Wilmington, and of all water lots except those numbered 1, 8, 9 and 11, the remaining undivided onefourth being then owned by Francis O. J. Smith, who, however, does not seem to have exercised any control over any of this property. Up to this time water lot owners who had been using water from the mill pond and mill-race had repaired dam No. 3 on numerous occasions and had rebuilt it on one occasion. The owners of the lands on which dam No. 3 was located, and over which the diverted water passed to the mill-race, had contributed nothing towards keeping the water power system in repair.

The primary purpose of the Kankakee Company was to improve the navigation of the Kankakee river by a system of locks and canals, for the use of which tolls were to be collected by the company. It was organized for the further purpose of developing water power and building and erecting mills on said river. In order to supply sufficient water for the system of canals and locks it was necessary to construct dams at certain places along the river, the incidental result being the development of water power. A dam was thus required across the west channel at or near the site of the dam which then developed the water power for the water lots, in order to divert sufficient water into the east channel to permit of navigation therein, and another dam, known as dam No. 4, was required about one-half mile upstream from dam No. 3; in order to divert the water into a canal which it was necessary to construct for navigation purposes from a point a short distance south of dam No. 4 to the locks which were constructed near the south entrance to the east channel. While the primary purpose of the Kankakee Company in making changes in the flow of water in the river by the construction of dams was to permit of navigation, a secondary purpose was to develop water power for use upon such lands as might be adapted to use such power. The record shows that it sold water power developed by means of dam No. 4 for use upon lands in the vicinity of that dam, and some of the provisions in subsequent deeds with reference to water power rights evidently relate to the unsold water power developed by means of that dam. The company found water power already being developed by dam No. 3 for use on the water lots to which it had obtained title, as well as on water lots which were then owned by other persons. Dam No. 3, however, was not of a height sufficient to divert the quantity of water into the east channel necessary to permit of navigation therein. The company therefore sought to re-build and raise dam No. 3 to a height which would have flooded the buildings on certain of the water lots not owned by it and which would also have resulted in injury to the water lots which it owned. The other water lot owners protested against the action contemplated by the Kankakee Company, and thereupon an agreement was reached between the company and the other lot owners by which the company undertook to

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