A motion by the appellant for a rehearing was denied, and the following opinion filed, February 3, 1880.
Tatloe, J.The learned counsel for the appellant moves for a rehearing in this case, mainly upon the ground that this court erred in not reversing that part of the judgment of the circuit court which-adjudges “that the plaintiff was not the owner of the land under the mill-race; nor of the roadway along the race; nor of the dam mentioned in the complaint; nor of that portion of lot 2 in block forty (40), and of lot 25 mentioned in said judgment, on which the dam rests and abuts.”
It is insisted by appellant’s counsel that this finding is inconsistent with another finding of the circuit court, to wit: “ That the plaintiff was the owner and in possession of the undivided three-fourths of said lot 25, and of lot 2, block 40, except the parts of the same on which the dam now rests and abuts.”
He argues that the two findings cannot stand together, for the reason that the same evidence which shows that the plaintiff is the owner of the three-fourths of lot 25, and lot 2, *160block 40, not covered by the dam, shows with equal clearness that he is the owner of the parts under the dam.
So far as the plaintiff shows any title to lot 25, such title is founded upon a tax deed issued by the city of Janesville, by which the city conveyed said lot 25 to one Marrietta F. Ford, bearing date July 31, 1865, and recorded in the office of the register of deeds for Rock county, on the third day of March, 1870.
It will be found by an examination of the findings of the learned circuit judge, that as to those lots and parts of lots, the title to which he found to be in the plaintiff, he also found that the plaintiff was in the actual possession thereof at the time this action was commenced; and as to those parts of such lots, the title to which he found was not in the plaintiff, he found that the plaintiff was not in the actual possession thereof at that time. After a careful consideration of the evidence upon this latter question, we think the circuit judge was clearly j ustified in finding a want of actual possession of that part of lot 25 and lot 2, block 40, upon which the dam rested. Without examining the mass of testimony in the case, it will be sufficient, perhaps, to show that the learned circuit judge was justified in finding that the plaintiff was not in the actual possession of the dam and the land under the same, before and at the time of the commencement of this action, to refer to the bill filed by Mead as trustee of A. M. 0. Smith, in 1874, signed by the counsel for the present plaintiff and the husband of the cesfui que, i/rust of Mead, in which it is alleged that said Mead, as to the undivided three-fourths thereof, had enjoyed the quiet and peaceable possession of said lands, dam and water-power for ten years and upwards, and that the said A. M. O. Smith was the owner and in possession of the remaining undivided one-fourth part, and had been for the same length of time.
The evidence in the case clearly shows that neither the grantee in said tax deed nor the plaintiff under her had any *161actual, exclusive possession of the dam or the lands under the same, up to the time of the commencement of this action in 1875. And, under the repeated decisions of this court, the grantee in a tax deed loses all title under such deed when the possession of the premises conveyed remains in the occupation of any person other than the grantee or those claiming under him for three years after the date of such tax deed, under the general law; and under the charter of the city of Janesville such grantee would lose all claim to the lands so possessed after the expiration of one year from the date of the record. Edgerton v. Bird, 6 Wis., 527; Falkner v. Dorman, 7 Wis., 388; Knox v. Cleveland, 13 Wis., 245; Parish v. Eager, 15 Wis., 532; Spreeher v. Wakeley, 11 Wis., 432; id., 442; Lewis v. Disher, 32 Wis., 504. Where the possession is disputed during the three years after recording the deed, the tax claimant loses his title unless he brings his action within the time limited. Jones v. Collins, 16 Wis., 594.
' These decisions were all made under theE. S. of 1849, ch. 16, sec. 123. But it will be seen that section 21, subch. YII of ch. 474, P. & L. Laws of 1866, being the city charter of Janesville, is the same as section 123, ch. 16, E. S. 1849, limiting the period to one year instead of three, and adding the word “ assessments ” after the word “taxes.” This latter section having been passed after repeated decisions of this court holding that it was, in the language of the court in the case of Falk-ner v. Dorman, “ a two-edged sword, cutting both ways, and operated in favor of the possessor, to bar the title of whichever party was under the necessity of resorting to legal proceedings to obtain actual possession within the three years next after recording the tax deed,” mus.t receive the same interpretation given to said section 123, ch. 16, E. S. 1849. If, therefore, any person remained in the actual possession of the land deeded by the city of Janesville for taxes, for more than one year after the recording of the tax deed, other than the grantee in such deed, or some one claiming under him, the *162title of such grantee fails, and he can maintain no action thereafter to recover the lands so possessed.
Nor do we think that under this rule the circuit judge was necessarily inconsistent in his findings. If the proof showed that the plaintiff took actual possession of that part of lot 25 not covered by the dam, within one year after the recording of his deed, then, as to that part of the lot, his title became perfect. If the grantee in a tax deed covering eighty acres gets peaceable possession of forty acres thereof within the time limited, and holds such possession until after the expiration of such time, there does not appear to be any good reason why his title to such forty acres should not be considered perfected, although the other forty acres may have been occupied by another party, adversely to his title, during the whole period of such limitation. In such case the result must be that the title is perfected in the tax-title grantee, as to the one forty acres, and avoided as to the other. So in the case at bar. If that part of lot 25 upon which the dam did not rest, was taken possession of within the year after the recording of his tax deed by the plaintiff, as to, that part his title is perfect; and if that part of the lot covered by the dam was not taken possession of, and was in fact in the possession of others holding adversely to his tax title, and remained so until the expiration of the year, then as-to that part of the lot the tax-claimant’s title failed. Wilson v. Henry, 35 Wis., 241; Pepper v. O'Dowd, 39 Wis., 538; Coleman v. Eldred, 44 Wis., 210.
Without disóussing the question whether lot 25 necessarily extended to the center of the river, and therefore the half of the dam was situated thereon, we are of the opinion that the plaintiff, by virtue of his tax deed, established no title to that part of the lot upon which the dam rested, though the lqt did extend to the center of the river.
For the same reasons above stated, the tax deed of the lands under the raceway conveyed no title to the grantee named therein. They were all recorded more than one year previous *163to tlxe commencement of this action, and the evidence shows that the raceway was occupied by persons claiming in hostility to such tax deeds from the date of the recording thereof down to the commencement of this action.
Without determining the point, we think it probable that the learned circuit judge was right in holding that the lands under the raceway constructed for the benefit of all the owners of lots along which it ran, could not be assessed and taxed separately from the lots it was intended to benefit and did in fact benefit. The. case of Spensley v. Valentine, 34 Wis., 154, goes very far in support of the opinion of the circuit judge. The race and roadway having been constructed for the sole purpose of accommodating the lots abutting thereon, it is probable that all those who purchased the adjoining lots with the right to draw water from such race, would take title to the lands under the race and roadway opposite their respective lots. See Pettibone v. Hamilton, 40 Wis., 402. It is, however, unnecessary to decide that question in this case. It is sufficient, to defeat the plaintiff’s title under his tax deed, that the possession of the same remained in persons holding hos•tile to his tax title claim for more than one year after the same were recorded.
The plaintiff showed title to the undivided three-fourths of lot two (2), block forty (40). This lot lies on the east side of the river, and at the east end of the dam. The court below, without questioning the theory of the law in this state, that a lot bounded by a navigable stream takes to the center or thread of the river opjDOsite, and that a conveyance of such lot by the owner thereof, in the absence of evidence showing that the contrary was intended, will carry the title to the center of such stream, held that the plaintiff, under his title to lot 2, of said block, did not take any part of the dam or the lands under the same.
The original owners of lot 2, block 40, having title to the center of the river opposite thereto, it was competent for them *164to separate the title and ownership of that part thereof lying under the stream from that lying upon the bank; and if the title was so separated by the act of the owner, before his conveyance to the person under whom the plaintiff now claims title, then the subsequent conveyance of said lot 2 by general description would not convey the title to that part of it which had been separated therefrom, and 'upon which the dam in fact rested. It is argued with great force and ability by the learned counsel for the respondent, that the evidence clearly established the fact that the dam and the lands upon which the same rests and abuts, were treated as entirely separated from lot 25 at the one end, and lot 2 at„ the other end thereof; and that in the conveyance of these lots, after the erection of said dam, there never was any intention to convey any part of the dam or the land upon which the same- rested.' The court below found, in substance, that the parts of the lots upon which the dam rested, had been separated from the parts of said lots outside of the-bed of the river; and that the conveyance of lot 2, block 40, long after the erection of said dam, by its general description, did not convey the title to the land, under the law, or any part thereof.
We are inclined to hold that the evidence justifies this finding. It appears that the owners of lot 2, block 40, and .the lands adjoining the river on the west side thereof, where the dam is now situated, obtained from the state a right to construct a dam across the river at that point for hydraulic purposes, and to sell and lease the right to use the water from such dam. Without this grant from the state, the owners of said lands, though owning the soil under the river, had no power to construct a dam thereon.
Acting under this authority from the state, a dam was built across the river as early as 1846, and has been maintained there from that time to the present. The owners of the dam, previous to the date of the conveyance of said lot 2 under which the present plaintiff claims, had sold and leased the *165right to use the water from said dam in large quantities, and for large sums of money paid therefor; in which conveyances the grantees, their heirs and assigns, hound themselves to contribute to the maintenance of said dam in the future, in proportion to the number of square inches purchased by them respectively. This covenant has been construed to mean that the amount to he contributed by each should be in the proportion as the number of square inches purchased is to the whole number of square inches which the dam furnished. These leases and conveyances gave to the grantees and lessees, their heirs and assigns, the right to maintain said dam across the river where the same was located; and no subsequent conveyance by the original owners of the dam itself, or of the lots at the end thereof, could take away such right. If, in the ex'ercise of the right given by the law authorizing the construction of the dam, the owners thereof had sold all the water which the dam afforded, with covenants on the part of their grantees, their heirs and assigns, to keep up and maintain the sanie, it seems to us that if the original owners had retained the title to the lots on either side of the river at the^ ends of the dam, they would have had no title left to the dam itself or the lands upon which it rested, hut that such title and right would have passed to their grantees, who had covenanted to keep the same in repair and who would he the only persons interested in its future maintenance. Such owners having sold the dam itself, and the perpetual right to maintain and use the same, the title to the land upon which the same rested passed to their grantees.
This seems to have been the view taken of it by the owners of the dam, as the evidence clearly shows that they have gone on selling and leasing the right to use the water from the dam long after the title to this lot 2, block 40, had passed from their ownership. And it would seem from the evidence that this must have been done with the knowledge and acquiescence of the plaintiff after he acquired the title to the lot under *166which lie now claims to own the east half of the dam, or the lands under the same.
It seems clear to us that, when the original owners had conveyed all the water afforded by the dam, and had relieved themselves from maintaining the same by covenants requiring the grantees to maintain it, such grantees would own the same as tenants in common, each owning such proportion as his quantity of water bore to the whole quantity afforded by the dam. Certainly, after such conveyances, the owners of the water would have the power to remove the old dam if they saw fit, and construct a new and better one for their use. The right granted to the original owners to build and maintain a dam across the river at that place would have passed from the original owners to their grantees. And under such grant from the state no further right would remain in them to build or maintain a dam at that place. If the dam itself and the perpetual right to maintain the same passed to the grantee of the original owners, then it seems to us that the original owners’ title to the land under the dam would pass also, under the well established rule of law that a deed conveying a house, unless it be clearly made to appear- that it was intended that the house should be removed by the grantee, would convey the lands upon which the house was situated. Angell on Water-Courses, §§ 155, 155 a, 156, 157, 157 a; 3 Washburn on Real Property, 389 and side p. 623, and cases cited; Blain v. Chambers, 1 S. & R., 169; Bacon v. Bowdoin, 22 Pick., 401; Whitney v. Olney, 3 Mason, 280; Forbush v. Lombard, 13 Met., 109; Morton v. Moore, 15 Gray, 573; Owen v. Field, 102 Mass., 102; Hapgood v. Brown, 102 Mass., 453; Prescott v. White, 21 Pick., 341; Moulton v. Trafton, 64 Me., 222.
We do not know, from the evidence in this case, that the owners of the dam have granted* or leased all the water which the dam affords, and we take it for granted that they have not. We have stated what we think would be the condition *167of- things if such had been the fact, for the purpose of showing the effect which the granting of a portion of the water afforded by the dam must have upon the title to the lands .under the same, and the right to maintain it, for the purpose of showing that it was not the intent of the owners in granting lot 2, block 40, to convey the land under the dam or any part thereof.
We think the grants of water from the dam, with covenants compelling the grantees to maintain the same, without granting in terms any interest in the lots at'the end of the dam, is strong evidence showing the intention of the owners to separate the ownership of the dam itself, and the power created thereby, from the mere ownership of the lots at the ends thereof; and this is strengthened by other acts of the owners of lot 2, indicating such intention. In the several conveyances of said lot it is evident, from the value placed thereon, that there was no intention of vesting in the grantees of such lot any title or interest in the dam or water-power. While the dam and water-power is valued by the original owners at several hundred thousand dollars, this lot is valued, at the very highest, at $4,000 or $5,000, and was in fact bargained away by. Coulton, under whom the present plaintiff claims, in 1861, for less than $400. It would seem that Coulton, when he owned it in 1861, could not have considered that, as a part of it, he owned half of the dam and water-power. Without reviewing in detail the evidence tending to establish the fact that the title to the east half of the dam and the bed of the stream under the same did not pass to the grantee of lot 2, block 40, wre think the evidence very clearly shows that it was not the intention of the original grantors that such title should pass by such deed, and that the grantee of such original owners, and his grantees, understood, when such conveyances were made to them, that there was no such intention. The building of t'm dam under the authority of the state and selling the right to use the water therefrom, with covenants on the part of the *168grantees, their heirs and assigns, to maintain such dam forever thereafter, without conveying to them any interest in lot 2, block 40, or lot 25, at either end of the dam, is evidence that the dam and land upon which the same rested, and the -water-power thereby created, were treated by all parties as a piece of property separated from the lots at the end thereof. The judgment of the circuit court finding that the plaintiff was not the owner of the land under the east end of the dam was right, and was properly affirmed.
We do not find anything in the argument of the learned counsel for the appellant on his motion for a rehearing, which shakes our confidence in the correctness of our former opinion upon the main question in the case, .and shall not, therefore, attempt any further argument in its support.
By the Court. —The motion for a rehearing is denied, with $25 costs.