Page:Federal Reporter, 1st Series, Volume 6.djvu/561

 BANK OP BRITISH NORTH AMERICA V. MILLER. 549 �tenances," without any special mention of water rights; thai on November 17, 1876, eaid Moore conveyed to said Miller and Churcb said lot 6, and the portions of said lots 7 and 8 above described, and the undivided one-half of said easement and -water right ; and that oh April 9, 1878, said Chureh con- veyed to said Miller the undivided one-half of said lots 5 and 6, and said portions of said lots 7 and 8, "together with ail the mills, buildings, warehouses, water rights, and privileges and easements thereon or appurtenant thereto." �In the cpnveyances of August 22, 1868, and June 26, 1869 the interest in the water right was the subject of a separate conveyance ; and in ail other conveyances of any interest in said water-right, in conjunction or simultaneous with any interest in said lots or either of them, the same was made by one instrument, containing, however, a special description thereof, except as otherwise appears from the foregoing state- ment. �It also appears from the evidence that at and before 1867 the water in question was conducted from the basin in an under-ground flume, on Main and Third streets, to the lots in question, under an ordinance of the city allowing the use of sucb streets for such purposes, and after being used thereon was discharged through a tail race into the Wallamet river; that said water was brought to lot 5, and about the half of it used to run a paper mill thereon, and 18 or 20 inches more in a machine shop on said lot 6, belonging to said Moore ; that in 1867 said paper mill was converted into a flour mill, and has been so used ever since; that sinoe before 1876 ail of said water-power was used to run said mill and machinery, and has never been used otherwise nor elsewhere than as above stated ; that at and before the date of the mortgage to Apperson the mill contained five run of stones, with the nec- essary machinery ; that there was upon the premises, and used in connection with the mill, a wharf and warehouse, and an elevator for lifting wheat from the river; that the water- power is worth one-third of the value of the site, the improve ments thereon, and the power; that there is a large surplus ��� �