175 A.D. 153 | N.Y. App. Div. | 1916
This action was brought by the plaintiff, a duly incorporated domestic water company supplying the villages of Central Valley and Highland Mills, in Orange county, with water from Cromwell lake, to enjoin the defendants from doing certain acts, viz., fishing, boating, bathing, cutting ice, running motor boats, watering cattle, in and upon the waters of said lake, and from doing anything else thereon or therein which may interfere with the rights of the plaintiff in said waters.
Cromwell lake is a small inland fresh water pond of about
The predecessor company of the plaintiff, to whose rights the plaintiff has succeeded by due conveyance, appears to have begun to take water from the lake for its purposes in about 1895, without in any manner having acquired any individual rights therein. About 1898 it obtained from the owners of the upland about the shores of the lake written releases and consents authorizing it to raise the waters in the lake one foot, and to overflow such land of the owners as might be necessary, and to draw the water from the lake for its purposes down to low-water mark. The such paper executed by the defendant appears in full in the record. In 1901 the plaintiff, by condemnation proceedings, acquired the rights of certain named persons as heirs of Ezra Earl in the bed of the lake. The defendants are the owners of two tracts at the northern end of the lake, which came originally from the Earl lands, viz., the Hudson tract, which includes no part of the lake bed, and the Hallock tract, which includes the small section of the lake bed above stated. The first deeds thereof in 1892 were' to the defendant Henry 0. Brunner and one White, but before the commencement of this action the title had, by mesne conveyances, vested in both defendants. Apparently the Hallock
The record seems to me to be somewhat obscure as to just what is the size' of defendants’ plot under the waters of the lake. ' At the request of plaintiff the learned trial justice found that at the most it extended only 60 feet into the water, and in his decision that it so extended only about 50 feet. He also found that the deed of the Hallock tract, under which defendants claim, did by intent of the parties include all of the land under water which Hallock owned in front of the upland conveyed; and that such land extended about 300 feet into the lake. The testimony of the surveyor seems to indicate that the utmost length of the defendants’ line within the water is 224 feet, and the utmost width of defendants’ land under water is 60 feet.
Taking defendants’ land under water as a parcel 224 feet long by an average width of 30 feet, which would be approximately accurate, it contains about one-sixth of an acre or about one-three-hundred-eighty-fourth of the entire bed of the lake, or one-two-hundred-ninety-fourth of the original Earl four-fifths thereof.
About 1880 the Brunners moved from Brooklyn to Highland Mills, near this lake, and in 1888 Mr. Brunner leased the Hudson tract, or the part of it lying upon the lake. Prior to that time there had been a fishing club, with a house, located on the Hallock tract, for which a nominal rental was paid. In 1888 Mr. Brunner, upon the land leased from Hudson, put up a building as a boat house and a sort of stand, where he sold cigars and soft drinks and rented boats. In the nineties he built a hotel, and ever since he has carried on there a hotel business, and as an adjunct thereto has maintained many boats upon the lake, cut ice upon it and had bath houses, and even held horse races upon the ice and run ice boats not only over the part of the bed owned by the defendants, but generally over the entire lake. The defendants had made such use of the lake continuously since 1888. Indeed, all the people living
The learned trial justice found, in effect, (a) that plaintiff had established no title to any part of the bed of the lake; (b) that the grantor in the deeds of the lands out of the Earl part of the lake intended that his deeds, although not including the bed of the lake in their description, should nevertheless convey such bed, in front of the premises described, to the center of the lake, or rather at least should include the right to boat, fish, bathe, etc., in the waters of the lake generally; (c) that the owners of land about the lake or the Earl part thereof, including the defendants, have by prescription such rights, and also that the defendants have acquired such rights by adverse user under a claim of right. Upon those facts, as conclusions of law, he concluded (a) that such rights are common-law rights incident to the ownership by defendants of land in part covered by water of the lake; (b) that the defendants have the right to take ice from the water over the bed owned by them; (c) that by prescription the defendants have acquired the rights to boat, bathe and fish in the lake apparently generally to a reasonable extent; (d) that the defendants, by then-said release and consent, have not released their such rights; and (e) that all the uses which defendants have made of the lake are reasonable and within their rights. Of course, from those conclusions judgment for the defendants necessarily followed.
Respecting the decision, it is to be noted in the first place that the conclusion that ownership by defendants of a part of the bed of the lake gives to them at common law the right of bathing, boating and fishing in the waters of the lake generally, is contrary to the settled law of this State. That law is that such rights are limited to the waters of the lake lying over that part of the bed which the defendants own. This very point was expressly so decided by the Appellate Division of the Third Department in Tripp v. Richter (158 App. Div. 136, 139), wherein it was held that the defendant, as the guest. and by the permission of the owner of a part of the bed of such a lake, had no right to row, bathe or fish in the waters thereof
In the second place, I think that the findings that the deeds of the various tracts surrounding the Earl part of the lake were intended by the grantor and grantees to include the bed of the lake in front of the respective premises, to the center, were contrary to the evidence. There certainly is in the record no evidence tending to show any such intent on the part of the parties to those deeds. There is nothing at all bearing in that direction, save the naked fact that the grantor did not retain title to any of the surrounding upland, and the further fact that from time immemorial, until plaintiff objected, any one, whether living about the lake or not, has at will boated, bathed and fished in its waters generally. I do not consider that those facts alone warrant the finding that the parties to said deeds intended that they should convey beyond the exact and definite bounds given therein.
In the third place, I think that the findings and conclusions that the defendants have, by prescription and adverse use, gained such rights in the lake, were contrary to the evidence and the law. All that the proof shows in that direction is that until the plaintiff recently objected, any one and every one has used the lake at pleasure to boat, bathe and fish in and upon. That sort of user does not give to the public or to any owner of land bordering upon such a lake any such right. Such user is merely by the sufferance of the lake owner or owners and without any claim of right on the part of the users. It constitutes only a mere naked trespass without the assertion of right, and can give no right however long continued. (Tripp v. Richter, supra, 138.)
It is a matter of common knowledge that until within quite recent years, mostly the last decade, it has been the common
It is evident that until recent years the locality of Cromwell lake has been quite unsettled. In the case of Concklin v. N. Y. C. & H. R. R. R. Co. (149 App. Div. 739), which had been tried before me at Special Term, this court held that fifty years’ use of open railroad land by an adjoining owner, in passing over it with many other people, was to be deemed permissive and so had not created any right of prescription or adverse use when the railroad company at the end of the fifty years attempted to fence in the land. The decision of this court in that case stands, as the appeal therefrom was dismissed by the Court of Appeals (207 N. Y. 752).
In Nellis v. Countryman (153 App. Div. 500) the Appellate Division of the Third Department held that the mere toleration by one farmer of his neighbor in passing for any length of time by a short cut over his farm, gives no right to do so. There are many farms over which such neighborly license for short-cut passage has been permitted for generations, and yet I think no court would hold that such user has created any easement right.
I think, also, that the findings and conclusions to the effect that plaintiff has established no title to any part of the bed of the lake were against the evidence. I think that the plaintiff did, by condemnation proceedings, acquire at least some interest as a tenant in common in all that part of the four-fifths of the bed of the lake which the common ancestor, Earl, had owned and had not conveyed away, which is of all that four-fifths except the small section owned by the defendants, and one other small section.
As to the parties to the condemnation proceeding the judg
The learned trial justice also found that the defendants, by their grant and release dated October 10, 1898, and above referred to, conveyed to the water company, for a valuable consideration, “the exclusive right to divert and use the water from Cromwell Lake for domestic and household consumption;” and yet he found, as conclusion of law, that defendants "had not released their riparian rights in the lake. The evidence established that at about the same time the water company obtained from each shore owner a similar instrument. The same year it obtained from Annie V. Whitlock, the owner of lands abutting upon the outlet part of the lake, the right to lay and maintain its pipes through her land “to the end that it may use the waters of said lake for the. purposes of its incorporation,” and also the right to raise the water of the lake one foot and to draw water therefrom for said uses. The instrument between those parties reserved to the owner the right to use water from the lake upon her premises, but the instrument given by the defendants contains no such reservation. The appellant’s counsel contends that such grant
It may be noted, therefore, that both cases so cited by respondents’ counsel differ essentially from the case here at bar, in that in one of them the owner had in no way granted to the water company or village the right to take the water, and in the other the owner had granted the right .merely to- take it for mill purposes; whereas in the case here a-t bar these defendants have granted expressly to the plaintiff the right to take the water away for domestic consumption, and the learned trial justice found that such right was exclusive. The counsel for the appellant has failed to cite any decision in point to sustain his contention here, but it seems to me elementary that the grant by the defendants to the plaintiff or its predecessor of the right to flood the lake and to take the waters away for its uses, viz., domestic consumption, carries with it, by necessary implication, the release to the plaintiff or the giving up by the defendants to the plaintiff of the defendants’ rights to bathe in the waters of the lake upon the defendants’ land, or to fish or boat therein or thereupon by themselves or at least by their numerous guests. Indeed, in order to protect plaintiff’s granted right of use for domestic purposes, the said rules and regulations appear to me to be reasonable. I think, therefore, that the plaintiff is entitled to an injunction enjoining the defendants from violating the said rules upon or in the waters over the land owned by them.
It is plain that there is no equity in the position of these defendants. By virtue of their ownership of a comparatively small part of the bed of the lake, namely, about one-three-hundred-eighty-fourth of the entire bed or about one-two-hundred-ninety-fourth of the former Earl four-fifths part thereof, they are attempting to use the entire lake as a mere adjunct of their hotel business, to run upon it, for their guests and patrons, some- twenty-two boats, and to have it fished and bathed in by practically a multitude of people whom they assemble at their hotel for purposes of gain. They are attempting to do this not only in the waters
In the second place, to permit the defendants to make such extended use even of the waters covering their lands would, in my judgment, be to permit them to act in substantial derogation of their grant to the plaintiff or the plaintiff’s predecessor of the right to use the waters of the lake for its purposes, that is, for domestic consumption. It seems to me manifest that if a farmer grants to such a water company the right to dam a stream flowing through his lands and create upon his lands a reservoir, in whole or in part, and to draw the water therefrom for the uses of the company, namely, for domestic consumption, he by necessary implication deprives himself of the right to make any use of the waters in such reservoir detrimental to the use of the waters by the company for such purposes, even if he does not thereby deprive himself of the right to make any use of such waters. (Johnstown Cheese Mfg. Co. v. Veghte, 69 N. Y. 16.)
I recommend, therefore, that the judgment appealed from be reversed, with costs, and that a new judgment be rendered in favor of the plaintiff for the substantial relief asked for in the amended complaint, except as to the cutting of ice over defendants’ own land, upon new findings and conclusions made here. To this end I recommend that the following findings and conclusions in the decision be reversed or modified as follows, viz.:
Reversed. Findings sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, twenty-seventh, twenty-eighth, thirty-first, thirty-third and thirty-fourth; and conclusions of law 4, 5, 6, 7, 8 and 9.
Modified. Conclusion of law 1, by inserting after the words “ Cromwell lake,” the words “so far as the same cover lands owned by defendants;” and by omitting the word “adjacent;” and by adding, at the end of the conclusion, the words “ except so far as the defendants granted those rights to the plaintiff by the instrument executed by them and dated October 10, 1898.”
I recommend also that this court make the following new
Findings. (1) Plaintiff’s proposed finding III; (2) plaintiff’s proposed finding V; (3) plaintiff’s proposed finding IX; (4) plaintiff’s proposed finding XVIII, changing therein the word “this” to “their,” and after the word “release” inserting “ dated October 10, 1898;” (5) plaintiff’s proposed finding XIX; (6) plaintiff’s proposed finding XX; (7) that the defendants have not gained any right by prescription or adverse use, to boat, bathe, fish or take ice in, upon or from the waters of said lake overlying the land in the bed thereof owned by the plaintiff, or in any part of the bed thereof not owned by the defendants; (8) plaintiff’s proposed finding LV; (9) plaintiff’s proposed finding LVH; (10) plaintiff’s proposed finding LXX-A.
Conclusions of Law. (a) That the defendants have no right to boat, bathe, fish, take ice, race horses upon the ice, or do any other act in or upon any part of said lake under which they do not own the land.
' (b) That by their grant and release, dated October 10, 1898, the defendants conveyed to the plaintiff’s predecessor the right to prohibit the defendants from using the waters of said lake, over and upon the land owned by them, in any manner which will pollute those waters and render them unfit for plaintiff’s use in supplying the inhabitants of said villages with water for domestic consumption; and that the plaintiff has succeeded to all the rights of its said predecessor -under said instrument.
(c) That the uses being made by defendants of said waters in permitting themselves and their guests to bathe, fish and boat in and upon the same, are polluting and, if continued, will pollute said waters and render them unfit for such domestic consumption; and that the plaintiff, by said grant and release, was fully authorized to prohibit such uses and fully justified in attempting so to do, as it has done.
(d) That the plaintiff is entitled to an injunction enjoining the defendants, their guests, agents and servants from in any manner entering upon ¡the waters of said lake, over the land so owned by the plaintiff as above found, which lands are described in said new finding of fact 1.
(e) That the plaintiff is entitled to an injunction enjoining
(f) That the plaintiff is entitled to have and enter judgment accordingly, with costs.
Jenks, P. J., Carr, Rich and Putnam, JJ., concurred.
Judgment reversed, with costs, and a new judgment directed to be entered in favor of the plaintiff, with costs, in accordance with opinion.