construct a new dam five feet in height in lieu of the old dam, which at that time was, and had been since it was first constructed by the Coxes and Bowen, about two and one-half feet in height. The dam at Baltimore street and the mill-race had been constructed with a view of taking care of only so much water as would be diverted into the east channel by a dam two and one-half feet in height. In order to accommodate the additional flow of water which would be diverted into the east channel by a dam five feet in height and to prevent injury to the mill-race and water lots and the industries located thereon, the company was by the agreement required to increase the height of the dam at Baltimore street, enlarge the mill-race and strengthen the banks thereof, and place gates at the south end of the east channel in order to prevent an excess of water from entering the east channel. These changes were made by the Kankakee Company while it owned a portion of the water lots, under an agreement with the other water lot owners by which the company undertook to substitute new conditions for the development of water power in lieu of those theretofore existing, the consideration for such action on the part of the Kankakee Company, so far as the other water lot owners were concerned, being, that the company was permitted to construct a dam, in lieu of the dam which then existed, of sufficient height to permit of navigation in the east channel and incidentally to develop more power for use on the water lots owned by it. The effect of this agreement, and the action of the Kankakee Company thereunder, was to change the nature of the easement in favor of the water lots in the lands on which dam No. 3 was located and over and across which the diverted water passed to the mill-race, from a right to maintain a dam two and one-half feet in height across the west channel and to the unobstructed flow into and through the east channel of so much water as would be diverted by a dam of that height, to the right to maintain a dam five feet in height across the west

channel and to the unobstructed flow into and through the east channel of so much water as would be diverted by a dam of that height at all times except when it became necessary to limit the flow for navigation purposes.

On December 14, 1875, the Kankakee Company conveyed to S. E. Trott its undivided three-fourths interest in water lot 2 and the right to draw from the mill-race sufficient water to develop 30 horse power, a provision being inserted in the deed that the grantee should use no more water than was granted to him, and the company reserved the right to prevent water from entering the grantee's flume or flumes until the use of water in excess of that granted should be guarded against. This provision, however, does not indicate that the Kankakee Company treated the water power as a property right belonging to it separate and distinct from ownership of the water lots, as this grant of water power was made at a time when the grantor owned a major portion of the water lots and as such owner had the right to apportion the water power to which all the water lots owned by it were entitled, among those lots in such manner as it saw fit. The effect of this deed was merely to apportion to water lot 2 a specific portion of the water power to which all of the water lots then owned by the Kankakee Company were collectively entitled.

After the trust deed given by the Kankakee Company had been foreclosed the trustees conveyed to the Kankakee River Improvement Company an undivided three-fourths of out-lots 20 and 21 of Alden's addition and of block 16 of Island addition, together with "all the corporate franchises and privileges, with the rights of way, dams, locks, embankments, abutments, wing-walls, waste-weirs, head and lock-gates, guard-locks and walls and canals, with all the appurtenances thereunto belonging, the property of the said Kankakee Company." It would seem that had the ownership of water power developed by means of dam No. 3 become separated from the ownership of water lots it would

by this deed have passed to the Kankakee River Improvement Company. However, almost four years after the making of this deed, the trustees, in whom there remained only title to certain water lots, purported to convey to the "estate of Willis Phelps" an undivided three-fourths of water lots 6 and 7 and "sufficient water from the race in said city [Wilmington] to supply 150 horse power under a head and fall of ten feet," and on the same day conveyed to the Kankakee River Improvement Company an undivided three-fourths of water lots 3 and 10 and "sufficient water from the race in said city to supply 75 horse power under a head and fall of ten feet." Apparently neither the trustees under the trust deed given by the Kankakee Company, nor the Kankakee River Improvement Company, considered that the Kankakee River Improvement Company had by its former deed from the trustees become vested with the ownership of and control over the water power developed by means of dam No. 3 which had not been specifically allotted to water lots, otherwise this specific allotment of water to lots 3 and 10 was entirely unnecessary and superfluous. The only reasonable theory upon which this transaction can be explained is, that both the trustees and the Kankakee River Improvement Company recognized the fact that all water power which had not been specifically allotted to certain water lots was appurtenant to the water lots to which no specific allotment had been made, and that only the owner of such lots had a right to control the same.

Appellees call attention to the fact that the deed to the estate of Willis Phelps was void for want of a competent grantee, and that the allotment of water power to lots 6 and 7 was therefore ineffectual. This, however, is of no importance, as William Claflin thereafter, by mesne conveyances from the trustees under the trust deed and from the personal representatives of the estate of Willis Phelps, became vested with the title to water lots 6 and 7. Claflin also, by mesne conveyances from said trustees and from

Francis O. J. Smith, became vested with the title to water lots 3, 4 and 5 and a part of water lot 1, and by mesne conveyances from the Kankakee River Improvement Company and said Smith became vested with the title to block 16 of Island addition and out-lots 20 and 21 of Alden's addition, and all "flowage rights, dam rights, and all other property, real and personal," formerly belonging to the Kankakee River Improvement Company. On May 31, 1898, Claflin conveyed to James W. Martin water lots 3, 4, 5, 6 and 7 and a part of water lot 1, "together with all the water power privileges belonging, incident and appurtenant" thereto. Claflin did not reserve to himself any water power rights which were appurtenant to the water lots conveyed to Martin, but, on the contrary, conveyed those lots with all water power rights appurtenant thereto. Since this conveyance the persons holding title to block 16 of Island addition and out-lots 20 and 21 of Alden's addition, and to the dam rights, flowage rights and other rights mentioned in the trust deed given by the Kankakee Company, have never had title to any of the water lots.

We think it is significant that in every instance in which water or water power was specifically allotted to a particular lot, or in which control over the water power developed by means of dam No. 3 was otherwise exercised, it was the act of the person or corporation owning the water lots to which no specific allotment of water or power had been made, and it was not until there was a final and complete severance of the ownership of water lots from the ownership of lands on which dam No. 3 was located, which was accomplished by the conveyance from Claflin to Martin, that any attempt was made by anyone who had no title to water lots to exercise control over the water power system.

From a careful consideration of all the deeds under and through which the American Strawboard Company and the Illinois Valley Gas and Electric Company and appellees, respectively, claim title, and taking into consideration the cir

cumstances under which the changes in the water power system were made by the Kankakee Company in 1870, it is our conclusion that the easements in the lands on which dam No. 3 is located and over and across which the diverted water passes to and into the east channel, which were substituted in 1870 by the Kankakee Company in lieu of the easements which were crcated by the Cox and Bowen deeds, in 1838, in favor of the water lots, have never been severed from the water lots, and that the water lot owners, and not the owners of block 16 of Island addition or of out-lots 20 and 21 of Alden's addition, have the right to control the flow of water diverted by dam No. 3 into and through the east channel to the mill-race.

Second-Appellees' theory is unsound for the following additional reasons: On May 31, 1898, as above noted, William Claflin, who was then the owner of water lots 3, 4, 5, 6 and 7 and part of water lot 1, as well as the lands on which dam No. 3 and the bridge at the south end of the east channel were located, and who had also succeeded to the flowage rights, dam rights and all other rights in the waters of the Kankakee river previously held and enjoyed by the Kankakee Company, conveyed all of the said water lots to James W. Martin, together with "all the water power privileges belonging, incident or appurtenant thereto." Dam No. 3 was then in position, the head-gates at the south end of the east channel were in place and were closed only in times of flood, the flow of water diverted by dam No. 3 into the east channel was unobstructed, and the flow of water into and through the mill-race was limited only by the capacity of the race. Notwithstanding the fact that the water lots were thus obviously situated with reference to the water power system, Claflin did not attempt to limit the water power which should accompany the conveyance of these lots, but granted all the water power privileges belonging, incident or appurtenant to those lots. Nav