Bank of British North America v. Miller and others.
(Circuit Court, D. Oregon. April 6, 1881.)
1. Appurtenance.
A water right, granted in gross, does not become technically appurtenant to land and a mill upon and for which it ia subsequently used by the grantee thereof; but where such water-power is taken and applied to run a mill belonging' to the owner of the power, and afler- wards, while the water-power is so being used, the owner conveys the premises by metes and bounds without mentioning the water right, the right may pass therewith, as parcel thereof, if such appears to have been the intention of the parties.
2. Water-Power not Appurtenant, when Passes with Land.
In 1864 a water right was granted by the owner of the basin at Oregon City, in gross; and in 1866 the same was taken and applied to the use of a paper mill and machine shop on block 2, in said town; and in 1867, the same being the property of the owners of the waterpower, they converted it into a flour mill and applied such waterpower to the use thereof, continuously and exclusively, until 1878, when the owner of the mill and power conveyed the mill, describing the property by metes and bounds only, and without any express mention of said water right, to secure a loan of $20,000, payable in two years, with interest at the rate of 1 per cent, per month; the said property, including said water right, being then worth not to exceed $25,000, of which sum the water right was worth one-third. Held, that, upon the facts and circumstances of the case, it satisfactorily appeared that it was the intention of the parties that the water right should pass with the land and mill; and, being then used in connection therewith, it did so pass as parcel thereof.
In Equity. Suit to enforce the lien of a mortgage. Ellis G. Hughes, for plaintiff. W. Carey Johnson and William Strong, for defendant Apperson.
Deady, D. J. On April 13, 1878, James D. Miller and wife conveyed the following-described property to John T. Apperson, as the executor of the will of George La Rocque, to secure the payment of the promissory note of said Miller, of the same date, for the sum of $20,000, with interest at 1 per centum per month, payable to said Apperson, or order, on or before two years after date, to wit: lots 5 and 6, in block 2, in Oregon City, Oregon; and also a portion of lots v.6,no.6—35
