*1 Corning Factory, Trot Iron and Hail v. Statement case. would to which creditor require with prosecute diligence, a a such case, insolvent without hopelessly debtor, any out of which to collect the to property same, ought for the further it would obtain, at reason, he war with of the law. general analogies ,
The Court should reversed judgment he Supreme a trial new granted. andV Murray Ch. and J., Grover,
Hunt, con- JJ., Daniels, curred with Lott for affirmance. Woodruff James, JJ., concurred with reversal. Mason, J., affirmed.
Judgment F. Erastus v. John The Respondents, Winslow, Factory, Iron Nail Appellant. Equity injunction, compel interpose, by mandatory will the restoration running channel, to its natural wrongfully water when there- diverted from, party at the suit of the part whose lands include either the or a whole of such channel. equitable interposition grounds for First, in such a case are two-fold: inadequacy any legal remedy parly enjoyment secure Second, to have the of his water in its natural channel. flow prevent multiplicity damages accruing daily suits for Wrongful continuous diversion stream. Code, necessary it is not Since first established should be in suit law. ~ fact, put use, the stream would not be artificial when restored, by restoration, those entitled to its such restoration them, slight advantage be of great injury and cause loss to would it, parties wrongfully diverting objection equity, is no valid -i' mandatory injunction. decreeing such party owning stream, the land on one side of a he has Where opposite bank, a dam built to the long maintained takes from an owner “ opposite situate, together bank lease his land there upon, through, adjoining running and use of all falls and benefit water leased, premises” precluded claiming he from thereafter adverse, premises, along against user of the exclusive the leased
the lessor. Tboy FTail'Factoby. Cobkixg [MarcL, Ibox axd of case.
Statement *2 who, using upon owning privilege stream, a One while water assents expensive of machinery by to the erection for the diversion water upon another, him, one side of the is thereby same stream not above estopped, subsequently purchasing the lands on the stream imme- diately opposite machinery erected, the demanding so from the water ] along purchased, channel, should the be restored lands so to its natural though great party erecting such restoration cause loss to the the will machinery. leases, long term, by Where one for a land adjoining traversed- or a stream expresses water, object to, approval of, of and does not the erection lessee, term, permanent by during the the of expensive of works stream, of character the from diversion water in its whole past through premises, course leased to other belonging to the lessee, operation and the of machinery land, by extensive on such other diversion, is, nevertheless, of such means estopped lessor from | I claiming channel, a restoration of the to its stream natural expira- at the < of tion the term. conveyance it, as appurtenant, A of land carnes to the with flow channel, statute, its conveyed. water in natural so the land The over making conveyances adversely void, of land apply held does not to such appurtenant they pass rights, and grantee, although a diversion made conveyance, before the was to such is, conveyance, diversion time of the party claimed caus- ing it. (This re-argued cause January, 1809, 15th and decided 20th, 1869.) March
This action was to obtain a brought perpetual injunction the defendant, it from against the waters restraining diverting of a in the portion Wynant’s kill, city Troy, along the land of the and to plaintiffs, defendant to compel restore to their natural bed or channel, waters kill, diverted defendant. The also asked for complaint sustained reason of the diversion of the damages and for relief. general where are premises, arose, controversy part
farm of 125 acres, conveyed, 1788, deed, by warranty without from Yan Bens- exception reservation, Stephen n selaer Jeremiah In Jeremiah 1189, con- Lansing. Lansing De to David Forest the same veyed premises, same these words: description, exception “ one land on acre of always Excepting, reserving, Cobning Tboy y. Factoey. Ibo:í aíto Y ail
Statement case. side creek, where south creek, adjoining the line crosses said wnto V. Sensselaer, Stephen of the manor of Esquire, proprietor Bensselaerwyck, his heirs and forever.” assigns heirs De David the name Forest (or
afterwards what written), conveyed called, case and in acre seven lot, opinions, and which ais of the farm 125 acres part conveyed YanBensselaer to to De Forest. and from Lansing, Lansing
This seven acre lies lot north side of the Wynant’s kill, and includes boundaries, within its outer as described in *3 the the acre of land in the deed plaintiffs’ deed, excepted from to De and then it in the iden- Lansing Forest, excepts tical of the language original exception.
At the where the seven lot is place acre the located, kill Wynant’s takes a bend to in north, the aof shape horse shoe, acre lies within the on the excepted bend, south side of the the seven acre on the creek, lot, opposite of side it creek, on the surrounding easterly, northerly and sides. The course of the westerly creek is general from east, Hudson westerly, river. ' Prior to the in of the 1813, John incorporation, defendant, Converse it in and preceded thereafter possession, was the of and principal manager incorporation, rights interests were treated this case as those of the defendant.
In Converse 1809, leased from David De Forest one and three-fourth acres of the seven acre (part for lot), twenty- one the nature and extent which lease years, dis- fully cussed opinion Judge Woodkuff.
From about that Converse time, defendant have been in of the and other land south acre, occupation excepted and on the the defendant claimed to trial, own same. title to the acre how- only paper produced, a claim ever, from Wm. P. Bensselaer to the Yan quit defendant, While held dam 1847. this lease, Converse for use of a shovel from the erected, factory crossing acre to what is seven excepted (the now plaintiffs’ I. Haud—Yol. Cobning Ikon and NT ail Tbot Factoet.
Statement case. on the the shovel was erected factory excepted acre lot), is on the north side What lot factory acre. is called gun lot of the of the seven acre creek, above, east plain- is also claimed defendant. tiffs, Con- In heirs De leased John 1817, the of David Forest lot verse the seven acre (with excepted exception end- months, and nine the term acre) thirty-four years the 1st ing day February, then In the defendant being own the seven it, excepted acre, claiming occupying lease to diverted the water under the acre lot, Converse, use it so as to kill or creek, point higher up, establishments, erected excepted their manufacturing at below lower creek and restore point acre, line the seven acre lot. As conse- or western boundary run in did not its natural the creek quence, the seven acre lot of its course between at channel any part acre. and the excepted thus diverted, make available
To a water erected diversion, wheel, the time of at about , and other sworn diameter, expense, works, feet fifty , as to facts, $100,000. the trial to nearly *4 the to this De one of Forest, plaintiffs’ grantors, assent of an defendant are the claims (which estoppel) appear diversion below. finding judge’s the still the and lease of 1851, holding In 1850 made acre which further lot, the seven was expire 1852, the in a excepted wheel acre, putting improvements and other at in diameter, erecting improvements, feet sixty $100,000 more. a nearly expense gross after the four of the lease About Con- years expiration acre the the the seven defendant lot, verse of continuing had who purchased diversion plaintiffs, this action. acre lot, seven brought Jus- first tried before Mr. Term, The cause was Special and his deci- Weight, who dismissed complaint, tice ordered which to General Term, sion the appealed and o. Iron Mail of case. Statement General Term a new trial. This decision reported at the before in 34 485. new Barb., trial, circuit, Upon Justice' dismissed. complaint again Mr. Ingraham, At this made trial, justice following findings: are the 1. That plaintiffs, by sundry conveyances, of the seven acre owned lot, formerly owners by to them 1852 and 1856, executed under by conveyances the devisees of David Defreest. and are in
2. the defendants are owners That possession acre on the south side of creek, reserved adjoin- thereof were creek, prior ing under deedfromWm. Van plaintiffs’ conveyances, ¡Rensselaer, dated 1st held the same 1847, having February, previously, under lease dated 28th Rensselaer, from S. Van ¡November, 1832.
3. That the defendant’s land is the boundary creek. 4. all That the water of prior creek over passed bed used excepting shovel returned to which was the creek at factory, or near the from which was taken. place 5. That in 1817, the seven acre lot was leased Defreest to Converse, for and nine thirty-four years months, such lease was afterwards, and until its expiration, held and owned the defendant. That, or about 1839, the year defendant com-
menced an alteration completed in then- works, which alteration the of the waters in the greater part creek were taken, means of dam erected across the creek, above the lands of the and were carried artificial through built channel, defendant’s land, to the defendant’s were returned works, bed creek until reached below the seven acre point lot, that such alteration was of character. permanent *5 That the Defreests 7. then owned the lot, seven acre the same was leased to and such held Converse, lease was the and that Abraham defendant; W. him- for Defreest, acting self other assented to owners, the diversion, urged Cobbing and Nail Iron Trox
Statement. o£ case. intended for the the purpose, of works completion that, fears not. the means-to defendant had expressed it. complete the from of works,
8. That wished the completion Defreest of a increase on his large population, expectation, part, and of rise in the works, of the increased consequence from the increased demand therefor, value of his property, to which was Burden. communicated 9. at the Defreest was informed of the nature That, time, and must have of known permanent, improvements, and resided character, works. vicinity down Defreest, 10. there is no evidence to-show that That time to objected ever conveyances plaintiffs, waters diversion of the defendant. to diversion, at the time of those 11. conveyances, That, full force, the defendant’s works was in the waters to that such diversion was permanent. time, of those
12. That conveyances, at. water as diverted claimed use the defendant and that such the consent their works with of Defreest have was adverse to any supposed claim the line to the bed of creek along retened the waters lot. acre seven have been erected at of the defendant That the works 13. to the use of the water as diverted expense, applied large Defreest thereto. after assent creek of the water the bed That restoration 14. an alteration of the wheel and. works other would require aat therewith, large expense. connected not, their grantors, That the plaintiffs, means had any expiration time since the if it had flowed through acre lot use seven of the creek. the bed line of the seven the fall
16. That of. of such boundary 'to the-lower acre lot, upper sufficient furnish water 5t„V power is. feet, would hour, 20 bushels per run run of one stones, grinding *6 Corning Troy Factory. 197 and 1ST ail Iron v. Statement of case. about mill would a cotton what lobms, equal a 20 horse power. the use of there have been no works That
17. requiring seven acre erected the water on plaintiffs’ (the lot), or the and none east thereon. either Defreest now plaintiffs, by the waters since diverted 18. That, acre the seven lot of have been returned above line below west lot. the creek point in the creek could the waters be used for 19. That operation on the seven acre use of lot, works shafting, obtained, the whole could be it is doubtful whether power across dam stream. running except by a dam across 20. That there in 1822 and subsequently, was, about feet five which creek, high, shovel factory, was removed about 1841 or 1842. in 1851 the defendant their That,
21. or 1852, enlarged of 60 feet their wheel works, diameter, building large then from the reservoir dam. the water taken return the in order to alter works so as to 22. That, where it the creek at water to place formerly raised the wheel must be returned, feet; 5Í¿ raising of the fall of the water over reduce the wheel would velocity the defendant of two feet would also wheel, deprive in the can now draw out of it. reservoir, they of water law: As matter of are the owners of the acre lot, seven
1. That and that their title extends the north on side creek, the center of creek. the flow are entitled to claim as such That, owners,
2. they the creek, land, of the water bed of along at the time of the conveyance same extent as existed them and others. Defreest acre the owners defendants are of the reserved
3. That the extends that their title side of the creek, the south lying the center of creek. diverted the defendant at the time when That because done, the same was legally the bed and Nail Iron case. Statement of held the land on one side and lease on the owned the *7 an adverse and that diversion was not snch other, possession, the continuance of lease. during 5. That at the various times when diversion took place, was done a license same under from although parol owner, of the its land, knowledge permanent as an the acts the owner did not character, operate estoppel to' him a from restoration of the water after prevent claiming the termination of lease. That
6. the diversion of the from the bed of the water creek made a been defendant having permanent held at time manner, them the convey- being ance to the under a claim of from the right parol license of of the water right flow through the bed of the creek had ceased to to the seven be appurtenant acre to reclaim lot, and to right same, compel restoration of to the bed of the did not creek, pass under those plaintiffs conveyances. - That the defendant have no title adverse acquired by- divert the from bed of the creek.
; 8. That the on the north side of proprietors the creek have lost of their non-user of rights water.
9. That the acts former of the land on proprietors the north side of the a creek amount relinquishment to use such the waters were diverted portion above their land.
10. That a where, license consequence parol owner of the land on the north side of the defend- ants have executed such license in a permanent manner, at a will not large expenditure interfere to money, equity enable such or his owner to violate his grantees assigns parol other agreement, will, action hand, enjoin if law, for such brought purpose. to the General appealed Term, again reversed decision circuit ordered new trial. Kail Iron and Grover, Court, per in 39
This last decision is 311. From the Barb., reported that the reversal order of General Term appeared of fact as well as of The defendant law. questions Court of from the order appealed granting Appeals, trial, new the usual giving stipulation. the first -the court failed to court TJpon argument had. decision and agree upon re-argument (John William A. B. for the Beach, Beynolds appellant with him). for the
Amasa J. E. Patterson, Parker Charles *8 respondent. the J. It General from the order appears,
Grover, that the reversed both Term, was judgment upon questions of fact and law. It the of this court to is, therefore, duty either whether the order was determine, upon ground. proper It the that trial, the assumed, parties upon Stephen by was all the lands Bensselaer to the owner of was, Yan prior and rendered water be affected rights by judgment him a The title of the action. deduced plaintiffs paper of land to that seven acres themselves, proved under this for a had been number of held, title, great years. with other Yan land, This by together conveyed piece, - to Jeremiah deed, 1788. Lansing, Bensselaer, by Lansing to David with other lands, piece, conveyed latter, deed contains exception: following “ of land on one acre the south always reserving Excepting creek, where line creek, side of adjoining his heirs and Bensselaer, unto Yan creek, crosses said Stephen forever.” acre intended assigns, excepted last in the deed from however included located, was deed, Yan A title to the Bensselaer to excepted Lansing. paper It is acre defendant. was shown from Yan Bensselaer insisted that the defendant for the counsel by plaintiff, failed that Yan Bens- title the reason show to this acre, Iron and Hail v, Court, per Grover, to the deed from selaer, being stranger Lansing Defreest, could no title an acquire reservation exception contained n in that deed. This point immaterial,
showed no title whatever to this acre, must stand their own title upon unaided the weakness of that of hy It was that a adversary. stream of proved known as ran kill, Wynant’s seven through acres, including acre, elbow on the excepted south making side, containing about one acre. Possession of this elbow, the lands including south side has been held creek, under the excep- tion in the deed from to Defreest for a Lansing number great a title years, adverse long enough perfect pos- It is session. insisted the counsel for the that appellant, been so acre has located as to embrace the entire bed of and that the land stream, is bounded plaintiffs’ north bank. His argument, object exception was to secure entire to Van power Rensselaer, of the entire stream is ownership for this necessary pur- rests sufficient basis. It does not pose, appear such The counsel object exception. further that it insists, acre was so appears, excepted located, from a lease dated from David February,-1869, Defreest to then in John lands Converse, 'possession now claimed by on the south side of defendant -a strip *9 the north of the creek. side of the land upon description is at a leased as follows: marked white oak Beginning tree, in line the the south .first standing party part at north the distance of kill, bank of links Wynant’s twenty kill; said then from the water various courses giving marked and to a black ash on the tree, and distances standing at distance of the kill, north bank twenty-five Wynant’s links' from the said thence the stream kill; water up This lease winds turns the place beginning. and contained covenant part twenty-one years, and a further -covenant the lessee to enclose premises, means of a dam or other he would the time, by not during overflow of stream, cause the in the obstruction placed' Iron Nail 2d Grower, of the Court, per lands It lessor. latter cove- argued nant shows that the lessor was not owner any portion but I do not think inference warranted creek, such thereby. the absence of would lessee, covenant, such have no overflow and if the lands of the lessor, lessee was the owner to the he middle of the stream might, by obstructions in the his own land, placing stream, upon cause the On inundation of the 1st of lessor. Abraham and John had succeeded May, 1817, who to the title of leased to was act- David, John who Converse, in behalf of the now ing the entire seven acres owned also plaintiffs, by including description, all falls excepted acre, with the benefit use of together and water the said upon, pre- running through, adjoining mises, in the acre, excepting precise language in the deed from for the exception Defreest (supra) Lansing term of this and nine months. thirty-four years Accepting lease was conclusive he Converse and those for whom upon acted, acre was the south excepted side wholly upon of the crfeekand extended no farther than the middle of the stream. The defendant entered into occupied under this lease for the entire term. These facts show that the defendant was bound to restore the in its natural running channel, at the of the lease, expiration relieved unless from such some immediate act obligation by or of those lessors, While title. holding posses- sion under this the defendant lease, 1839, constructed arti- ficial channel for the which it was stream, diverted wholly from the seven across the acres, conducted acre, excepted and used overshot constructed to upon, wheel, large ope- rate the extensive of the defendant. At time this machinery were owners of six plaintiffs acres the stream, below the which was extensive premises question, upon means of the water machinery, operated them, power of acres. The interest seven having drew down their *10 time, enable pond defendant to excavate tail race from its wheel to the bed of
—Hand Yol. I. Trot Iron and Hail Factor! . . Court, per Grover, It the stream. is insisted the defendant that this precludes claim of the to have the stream restored plaintiffs to its natural loss to the channel, thereby defendant causing great in of its respect operation answer machinery. this that the base their claim to is, plaintiffs such restoration title to the seven acres, in they obtained, the residue and that was part, 1852, 1856, it known, at time defendant that the then had no plaintiffs interest therein. It not then in their was, therefore, power to affect to the reversion in the seven any right appurtenant acres, as the then owners or those against subsequently acquir- title. It is further ing insisted by one of the defendant’s was from Defreest, lessors, precluded the restoration of the his to its stream, assent requiring at the diversion time was made and that if his thus cut him was could under off, grantee assert, his better thereto than he had. The conclu- any grant, sion correct under facts of as is, case, doubtless, water was fact at diverted the time Defreest conveyed This was sufficient to plaintiffs. put plaintiffs upon as to inquiry defendant to any right, legal equitable, make the diversion. Such have led to would infor- inquiry mation of the acts are, therefore, with notice of such chargeable not, acts. are there- They as Iona to be in this fore, regarded purchasers respect, fide but take the land subject legal equitable right the defendant It had, diversion Defreest. against must, if be determined what such aswas therefore, any, right, against The case shows that Defreest lived at the the latter. time in the immediate while vicinity, frequently place several conversed the work times progress, to such his defendant, expressed agent agent managing would change improve power, opinion he That knew vicinity. would benefit property would cause improvements the contemplated change and that sum of while these of a money, large expenditure incurred, made no were being objection large expenditures *11 Factory. Corning anu Nail v. Iron- Court, per Grover, Opinion of the J. must that he of It is claimed
to the diversion the water. the of the from the amount expenditure known, diversion was designed character of the improvement controverted fact to be The latter is strongly permanent. shall I the but, question, by plaintiff, considering these that It the defendants assume its truth. is insisted by from any facts an Defreest asserting constitute upon estoppel of the claim to a the restoration of the water to prejudice that the defendant to this is, defendant. The answer position the acres, at the of seven time had the possession only thereto, but, also, full control of the water belonging of the term the and control for unexpired right possession and that the thirteen years, during lease, period use of the time to stream had no to any Defreest object right an to as such worked by defendant, except injury of the stream, diversion during reversion, That at the defendant, time, would not. period, clearly knew that of the lease right upon expiration divert under as well as Defreest the water would cease it, just claim did, there no other by pretense any defendant other the stream from divert any right seven acres. The defendant was therefore, sense, not, misled or deceived to its done or omitted right anything Defreest. The case does come not, within therefore, counsel, of the class of cases cited defendant’s principle in the belief that he has makes that when one, title, holding with the encouragement improvements knowledge owner shall title such owner, estopped asserting made such prejudice party having improve- ments. The is based the fraudulent conduct estoppel There is no such Defreest. owner. reason applicable and it as his He was not follows that the estopped, are not. There no pretense estoppel upon grantees, are co-tenants who also plain- grantees tiffs. It is insisted to a restoration under their stream,
acquired such, existed in their for the deed, grantors, although [March-, Trot Iron and Wail vise, Geo Court, per reason that the diversion was and that the prior grant, defendant was stream time. holding adversely was at time There is grantors. *12 no hut to the title question passed by grant plain with incident or tiffs, The thereto. everything pertaining right flow stream in natural an its channel was inci dent to the land. 3 Kent’s 1st Com., 439. R. S., 147, § of declares shall void grants be when p. at the such lands be the actual shall, time, of a under title adverse to that another, claiming grantor. This to adverse not to such applies land, holding of some with thereto, holding right appurtenant passes the land. The land is to purchaser entitled such v. 4 (Mason Barn. & appurtenant rights. Hill, Adolphus.) It follows that had the to the stream plaintiffs right flow natural its channel the seven acres along purchased For a them. violation of this defendant, right had a -of without of actual recovery, proof damage, use irrespective them. power by (Tyler 5 v. 4 3 400; Adams Wilkison, Mason, Kent, 539; v. 2 Burney, v. 6 225; Embury Owen, Townsend Vermont, Exch., 368; It McDonald, Kernan, follows, v. that the 381.) plaintiffs to entitled recover of the defendant for the were damages diversion of the stream. It assumed now be may wrongful obtain action, as settled the same could, plaintiffs all the relief which facts out of entitled them, arising -of .the diversion whether relief or such was legal Or both. enti were (Code, 167.) They equitable, clearly § tled recover erred damages, therefore, judge, General Term were dismissing complaint, -the a new trial. This reversing judgment ordering affirmance of to an the order and to from, leads appealed but whether such defendant; (cid:127)final against judgment be for shall addition -only, -damages thereto, judgment a for the restoration mandatory shall award injunction natural remains -channel, to its to be considered. It is dant that the defer the latter not to be urged by ought included, axd Kail Corxixo Irox G-royer, Court, per for various of which that it would reasons, are, principal be and be productive defendant, great injury little benefit to the fact is former established plaintiffs. the evidence. The latter rests that, upon hypothesis as the inasmuch have not heretofore used the plaintiffs power have made do not to use desire preparations it, they for use. The facts its restoration would a show that give power sufficient for a fifteen bushels grist-mill grinding per hour, looms. cotton then conies factory forty question has who this, whether diverted wrongfully from the stream such water plaintiffs affording power, shall be such continue permitted diversion, wrongful what theirs without thus is clearly deprive that its restoration would their assent, simply ground In other to it. its words, con *13 damage by great tinuance to its own use the appropriate property wrongfully it derives a much benefit than the the plaintiffs, greater to their own. The could restored bare plaintiffs being statement of the would the seem question suggest only answer. The idea of is to to each one proper justice very give his due. The use of natural flow of the stream is the due and to it from them plaintiffs, justify withholding some better reason than loss to the conse requires wrongdoer its restoration. It is insisted that the upon equitable quent of restoration has been lost The statute by delay. either law in has not limitation, attached so equity, The case no to that bar has, therefore, right. analogy cases where refused class of has relief equity upon ground was barred the statute. The defen remedy legal dant has money upon since the expended improvements cases consequently principle expiration that where, delay holding during party asserting have his been made right, expenditures improvements, do not Lewis will not v. interfere, equity apply. Chapman this class. The (3 restrain, is one of Beavan), plaintiff songlit of a work of which he by injunction, publication a It owner that he had lain still for copy-right. appeared Teoy Factory, Iron and Hail Court, per Grover, six and seen the defendant years upwards expending this money printing work, &c., &c.; upon ground, equity refused to relieve the There are cases plaintiff. numerous this found all rest description books, they All same there is in this' case that principle. is, delay the defendant them water plaintiffs finding using power it to four have continue such use for about permitted years. this furnishes no reason for the refusal of Clearly indulgence aid the of their plaintiffs recovery equity legal It is insisted that not rights. equity ought in behalf for the reason that inteipose do not want afforded power, stream, they This is a mere It is true, for use. they assumption. for the have not heretofore used very power, perhaps, had that have not to use it, reason ability good it from them. It account of the defendants withholding have erected no for is said plaintiffs machinery is true. The not con- This plaintiffs purpose. to rot while with the defendant structed machinery litigating if of the stream. But the facts claimed were the recovery the defendant in established, would protect clearly man the stream. Ho withholding justified wrongfully from the owner when to sur- required property withholding he does not need its use. it, ground render will with own. do what they Upon may is a case of equity jurisdic- established proper principles, *14 is that the law inade- First, remedy tion. upon ground are entitled to the flow of the stream, The plaintiffs quate. remedies cannot restore it to natural channel. in its Legal it. in Hence the them and secure enjoyment them for the accomplish- of a court equity interpose duty inter- A further that result. requiring ground ment of actions. If is to avoid multiplicity of equity position of the whose aid the refuses its only remedy equity to commence suits from bewill established, have been rights make it the interest of endeavor and thus to day, day ita stream restoring to do the defendant justice and Hail v. Iron 207 Woodrufr, Court, per other means of If have no recovering plaintiffs channel. there is But defect great rights, jurisprudence. is no defect. The there such plaintiffs as is relief as established well sought, authority equitable 3 v. The Portland Co., (Webb Manufacturing principle. and cases 4 cited; Mason, v. Sumner, Tyler Wilkison, v. McDonald, Townsend 400; Kernan, 381; Story’s on Water 901, 926-7; Courses, Angell Equity, 449-50.) §§ §§ It is further insisted defendant that will equity has until been settled at law. for interpose That, was the universal there rule, where merly, substan (Gardner tial doubt as The Trustees legal right. 2 John. But rule Newburgh, Chan., 162.) longer in this State. We all have before seen that the relief prevails is from same entitled, transac arising party Code, under the tion, obtained one suit. Besides, may, there is no doubt as to case. legal right present conclusion are is, entitled to the aid of My plaintiffs the stream to its natural and this equity restoring channel, the loss to the whether defendant is more less. defendant was bound to restore the stream expira tion with the land. The order equally appealed should be from final affirmed, judgment given against the defendant for the sustained damages by plaintiffs, restore the natural stream to its channel. It is not whether the important case, determine, plaintiff’s is center of the stream, or the south I boundary bank; have not, therefore, discussed question. J. The title of the lands sur-
Woodruff, the bend of the rounding Wynant’s kill, northerly, sides, from easterly westerly through conveyance Abraham W. Defreest under the from others, deed to David Jeremiah De established. Lansing Forest, clearly boundaries of their of their land, both con- given ¡Rens- and also veyances, deed Van prior Stephen selaer, all of bend include and the one acre *15 Txsoir Ixíox axi>. S'ail Bactoiív. Cobkjbtg Coui't, per Woctobotv,,
Opinion, of which the within the bend, defendant’s portion works are The line south line, erected. being straight known line of the David as Defreest farm. south
But in the is an deed from there Jeremiah excep- Lansing tion of on south side creek acre, one adjoining to the I think identified the said is as creek, sufficiently one acre the bend. within The lease Abraham John by Defreest to John who the shovel Converse, occupied factory, identifies it, for within demised the bounds premises there is acre no other which answers the description. deed of J eremiah to Defreest exception Lansing
was effectual to one of the title to. that prevent vesting acre it from Definest; devisees, turn, except to the conveyance plaintiffs. Whatever land and to the water remained Jere- miah and after his Lansing, upon conveyance Defreest, is now claimed defendants. The present description, left each my judgment, owners, Lansing Defreest, ad juoprietoi’s on aqucu. expression, lying filmn south side of creek and to the has none adjoining creek, which the coui’tshave specifications sometimes regai’ded bank of the confining boundary stream; the creek. This makes adjoins the creek the boundary not the bank or shore. Whenever the held limited is grantee bank or or of a shore, side or one line stream, high- itway, because the hounds are in tenns to he such expressed side bank, or shore, and the rule does not line, when apply, the land is described as stream creek, running highway. if
So had that, arisen Jeremiah question between Lan- and David after sing of the deed delivery I latter, have no hesitation force each, by saying of that was entitled to the center conveyance, kill and it is the title David Defreest which the only hold.
That title, however, events if impaired subsequent *16 y. y Conxixu Tito Iitox axd Mail Factoey. 209 Court, por Woodrott,
Opinion of the J. to the to them the conveyance by Lansing Defreest, gave clear and have water of the unquestionable legal right creek run in its and to make channel, such use of proper fit, saw as is inter- as without they practicable, with the those who own right acre, fering excepted which absolute extensive. equally equally To whether events, said deed subsequent determine from or affected this Lansing impaired be useful to consider what is the title may the one acre of defendants to land. Mot because that title is nor doubtful, now because does not rest relief, plaintiffs seek, upon own but because the title, history defendant’s title bear in their may alleged equity favor, forbidding should be or loss. In subjected heavy expense the first so far as the evidence in place, they are, appears by this without cause, title. documentary any the deed from Jeremiah to David exception Lansing Defreest, called also therein reservation to Van Stephen Bensselaer, to vest in the latter wholly inoperative any title. He had before shortly conveyed entire Lansing farm, without or qualification exception, reservation deed, did re-vest title in Lansing, any him. He and to was, Lansing’s the land conveyance, conveyed, a stranger.
I have said that this clause already operated exception, land did not excepted pass Defreest. As reserva- tion it was It did anas inoperative. operate, however, excep- What tion. relations existed between and Yan Lansing Bens- which induced selaer, to insert that clause in Lansing the deed intent that Yan Bensselaer apparent should enjoy land, whether he had re-sold that or was under acre, agree- ment to it was we reconvey, why done, can, most, only It must suffice to conjecture. that there is no evidence say, in this case which warrants us in as a reserva- that, holding tion in favor of the latter, it could have any legal operation.
It follows, lease from therefore, subsequent Stephen.
—Hand Yol. L Teoy CoBimre v. akd Nail Iron per Court,
Opinion of the Woodruff, to the defendant, 28th, 1832, November, dated Rensselaer, Yan was demise acre, this one to demise if it purported in no title that i. title, e., who had appears person nor one acre, this lease does not embrace In case. truth, a dam it, erecting nor privilege any right part *17 erect- and of privilege It demises thereon. simply had erected dam where John Converse sustaining ing from the said Yan Rens- under demise a dam, occupied before leased Yan by within the bounds farm selaer, to conduct Norton, Rensselaer to William &c. here mentioned may, pro- therefrom, privilege which mill dam, to called does, rolling refer what is bably it was but clearly Norton farm, within bounds not on the one acre. far from
Indeed this so purporting convey any rather indicates that acre, the one embraced within privilege was not Yan conscious having any pre- Rensselaer himself himself understood and tense of title to the one but acre, entire he'had farm, owned the which believed that Defreest and was either ignorant excep- conveyed Lansing, in the fact it or deemed This tion, appears inoperative. the dam the Norton after on erecting leasing privilege race- he adds the conducting farm, privilege the Norton farm to the iron and dam, way, through Converse, nail erected John may which factory now the defendant on the or lately belonging erected by fa/rm iron and nail here factory to Da/oid only Defreest. one referred to acre part, was, excepted part farm before mentioned. This indi- on the Norton strongly claimed no title to this one that Yan Rensselaer acre, cates “ farm deemed it a to David belonging part Defreest.” as the reservation did not to re-vest the operate Again, it the one acre Yan follows Rensselaer, title to Stephen deed of William Yan Rensselaer, P. devisee in 1841, all Ms title interest, releasing right, conveyed to the defendants no title. Nail Iron and u. Woodruff, Court, per is deed is
It noticeable even this inaccurate in its reference to to release subject, one acre purports reserved Yan conveyance. Eensselaer to by Stephen Jeremiah No Lansing. Yan Eens- conveyance Stephen selaer Jeremiah is Lansing produced reserva- containing any tion.
It when this quite probable that, conveyance taken, the absence of such reservation in Yan Eensselaer’s Stephen deed to was overlooked. Else the Lansing reservation Yan Stephen Eensselaer, deed of to Defreest, Lansing would have been referred if to; well or, perhaps, advised, the defendant would have a release from the heirs sought instead of the Lansing, devisee Yan Eensselaer.
No other leases or or other deeds, conveyances, documents, are produced defendant, which purport show any title in them to one acre, be in appear *18 No even from John occupation. conveyance, Converse, in the defendant produced, vesting any rights which, by or be claimed he otherwise, may had acquired. then, is the
What, foundation apparent title % at According finding judge Special Term, title to the one acre defendant’s within the bend is held under from William P. Yan conveyance Eensselaer, 1847, held under father’s made previously having that the shown lease I have latter did already not and deed acre, the former embrace the one did not con- in him, no title which he because could appears it, vey convey. either defendant or The first connection John Con- far as can be with the one so acre, verse inferred from the was in or building shovel judge, findings occupying he which finds was at across creek dam, fac- factory in 1822. tory that time John
At Converse held lease of the seven acre lot now for the term of belonging plaintiff thirty-four and months, nine and dated and 1817, the erection years or continuance of the dam far as it the stream so across or indicated claim of imparted exclusive use Iron and Nail
'Opinion Court,per Woodruff, earlier if it must, of the water had appropriation begin be deemed under that leasé. ning, But an shows, examination of the evidence think, very I dam John Converse, was erected by clearly, not'only men- but that it to the lease last was ’erected 1813, prior tioned. The taken Term, view which was Special and of -1839, effect of the "diversionof the the acts and assent of Abraham W. rendered it Defreest, unimpor- tant or -at date that dam was whom what erected, precisé and -no -hence earlier date than 1822 exist- its assigned ence. the oné erec- acre, history holding
tion of dams at or-near end of the bend shown each evidence is this: not dis- "Converse,
In John for some very puipose David years, leased tinctly twenty-otte apparent, "ofland acre easterly one three-quarters lying mill at the site the bend, contiguous rolling farm south line of the Defreest crossed the where the point land included the seven acre tract embracing what between creek of the bend 'east lay so fai extending -nowto be the Greeribush highway, appears of the bend, northerly apex as the most point to the north to "be creek presently along but with qualification noticed. lessee covenant in this lease
The lessor required obstruction dam or other or make build, will erect, *19 the be overflowed land the lessor during the of may whereby term. the or that covenant, qualification with
And in connection the land significant.; be very may limitation boundary was not the demised premises or creek side of on the west it the but creek, of nor ereeh, by bounded the hy and nearly to -run along made caution, with was, apparent of therefrom -twenty distance at a the with parallel the .at one rod) links (over arid one end twenty-five links own in his retain other. If the lessor designed Corning- Nail Iron and. Court, per Woodruff, the of in of water the one rod width between and control in should demised order lessee and the that creek premises, only by thereof, meaning no water have virtue privilege this boundary and only, upland purposes demise upland was appropriate. had evidence Converse other indicates that John time., rolling about that erecting
erected, contemplated to, leased Norton, mill dam or some dam farm his in favor of against any overflowing covenant Befreest since, appears map. as appropriate, was east- Burden, farm D-efreest’s testimony Henry extended is creek, where premises up far the demised beyond erly to, have reservoir, been may liable now.the overflow a the one height, dam built undue retention of the east side of the a bend, cove- rod with along his not that land should is overflowed, the lessee nant by in erect recognition Converse to. quite clearly no as over- water back so to. below, dam which would set one water. along rod flow I that the lease it clear, think, So that is shows 18.09. in erect shovel Converse to factory dam across at the o.f bend. west stream end I Nevertheless, shows, think, the proof by very clear pre- that John evidence, Converse, or Converse ponderance did érect in Adams factory dam, year shovel W. true, It is Befreest quite positive is that Abraham himself and was built his brother, before but he 1817, after lease. testified given No doubt other makes it far testimony probable that, so. sincerely, lease his making as the existence referred he must date, niind, of- the lease confounded test father, 1809, himself given given an earlier date to give its existence, Si? brother. witnesses of their them speak personal some experience t.Q Ias, so them connection, think, entitle belief. Williams that the dam operation when he positive worked in 1816. Bobinson there, there worked January, *20 and Kail Ibón Woodruff, Court, per of the it had then been for and and erected. Converse Adams, and Enearl knew the from states 1809, premises dam in was erected Purcell it war; says 1813, during was built he knew the 1815; between and Grazee says in dam defendants’ works and shovel 1815, factory nail then worked at the in who erected; Grundy, factory then 1814 and of it there. as 1815, speaks We of a have then, directly upon question bearing in and to maintain John or Converse Converse, Adams, a dam at the west end and to the exclusive use bend, and for of all manufae creek appropriation in at that the first fact, that turing .purposes, point, leading did erect and 1813, across they dam, extending did take the exclusive use of for such water, purposes that point.
Whether were Converse, Adams, acting Converse it connection the defendants, who, appears, were is not Both incorporated 1813, specifically proved. were associates, from them is and, conveyance although defendants’ produced, witnesses works as the speak works 1815, whole evidence indicates sufficiently that whatever were were Converse treated rights acquired by practically to, or for defendants. belonging acquired Or, in another it said view, to be may unimportant, since, if the of exclusive use appropriation acquired by Converse, was and their from gone grantors. I in favor of therefore, treat them John defendants, Converse as identical, to be purpose question - n - decided.'
This then fact stands as above prominent, stated, shovel dam' was use factory erected the exclusive of the water If that appropriation, assumed dam had been continued and that exclusive use enjoyed time until onward, diversion ' n unaffected other it would have been events, clearly adverse to the owners of farm, the Defreest northerly, easterly bend, side of so could westerly *21 Factory. Corning Nail «. Iron and Woodruff, J. of the Court, per
Opinion a or to draw the water to dam, not have asserted right in any interference purposes, therefrom for manufacturing adverse But to establish holding therewith. right must be in con- continuous, use such use, holding to the adverse tinued hostility party. or four Converse, occupied thereabouts,
Here years having John Defreest, from Abraham and lease accepted land of all the around months, and nine years thirty-four of all and use falls benefit the bend, together of the lessor’s thereto—a clear recognition water adjoining in that water, falls and though perhaps interest such and the of the that the falls water an admission necessarily but this is exclusively the creek were his; very full width if the whole creek owner since, belonged significant, of it no to take lease there was occasion the one acre, in the to all lessors object Defreests. So right from the to their of the the dam across side this stream, continuance use water, back to the setting to object far and so as this erection and themselves, was appro- quieted; an of their had theretofore been infringement rights, priation in subordination thereto. It is not thenceforward was exclusive control and use of securing improbable the inducements one of Converse water, leading the lease. obtain there 1st, 1852, that down was no follows February
It and use which impaired any degree adverse occupation Defreests, or which Converse or the gave right to maintain shovel dam, factory defendants any of that after lease. expiration water to appropriate the one acre of unquestionable, respect It seems that the defend- exclusive possession there such title thereto. But to have be assumed should ants to divert the water, as to the right settles nothing has title and use been adverted to the defendants’ history nature and extent of for the only purpose ascertaining and for their their interest the water of proper claim to be equitable pro- influence bearing upon y. Trot Iron and Mail Court, per Woodbtjit, which tected erections enjoyment and to turn the over to redress (cid:127)made, -plaintiffs damages only.
The result is this: The in 1839, defendants, having acquired to divert the under the'lease except then had exclusive withdrew (cid:127)they possession, *22 natural channel. At the its the expiration had a lessors clear to the of the legal right pre- and to have mises, benefits from the enjoy resulting of the its natural flow water channel. The full restoration its former condition property was contemplated . when the lease was and the lessees were allowed six given,
months after the of the term to expiration down and pull dr houses, remove mills other or any machines buildings This demised extended the term premises. right to purposes privilege August 1st, find,
I therefore, nothing case affecting legal when this action right was or commenced, their to have this water restored to grantors its natural it unless be that in channel, violation of the rights had those diversion been conti grantors, n-uedfive or six The date of the commencement of the years. action is not furnished it us, but appears by proceedings on the first that it Special Term, was trial, tried before 13,1858. April
Five six or years claimed .appropriation cannot give adyer.se right. point law, therefore, And fail they to establish a defence .action.
I the General that Term, concur with fully conversa- with while the- tions were Abraham defendants do not making or improvements, estop co-grantors his Indeed, I plaintiffs. do they estop think him. did not then or improvements impair inflinge right my and it is not at all his, he clear, upon evidence, that intended to waive his water right return pnderstoo.d. channel, he was he so I supposed An4 not at all .ata satisfied acted, defendant making Teoy Corning- Ieoh and Nail Court, per Woodbwf,
Opinion of the idea that his consent was upon necessary, improvements, them that it had so as to authorize to act been given, that the idea and I doubt thereon, asking per- greatly ever occurred the defendant. Had deemed it mission they would it- have any importance, sought per- in a form, mission his co-owners which would be authentic for their after the had available lease protection expired. I the General with have Term, So agree right to the channel not an returned easement, incident severed from the own- freehold; in and the bed of the of the fee stream, ership adjoining with it plaintiffs. passed are intru case, defendants, they appear upon the one acre on the side of the
ders south bend, out or title. that one acre until adverse occupied posses-
They or are to be deemed to have title. have, sion they *23 seized early upon appropriated They very a dam the land across, bend, building upon manner and then title, in like without or took right all claim -that their lease which-precludes adverse. thereafter diverted the and at the end the tenancy they
During not it have returned to its channel. proper they term, have continued to it For five appropriate six.years in clear I violation, their exclusive use, think, legal and their of the plaintiffs grantors. rights can the On their nature, what grounds, equitable plain- be denied ? legal rights tiffs’ I that in the loose
1st. said already my judgment have defendants’ testified -the Burden, conversations Henry in 1838 Defreest as Abraham W. had, he says, agent, or create are not sufficient to amount to license 1839, his still him, upon estoppel less operative he, -whose behalf is not shown to on co-owners, the lease. to collect the rent reserved authority, except That There this viz: consideration, during 2d. remains 28 Hand—Yol. I.
218 Trox Iron and Hail Woodruff, of Court, per continuance of the years’ defendants did thirty-four divert the water and so their works to its adapted use, it would cost them a considerable sum to return the water to its channel without original materially impairing efficiency of their water power.
I am aware that the finds court, Term, Special defendants water wheel to diameter of enlarged sixty “in or 1852,” it doubtful feet, whether it was leaving before after the expiration but the lease; agent under defendants, whose immediate done, direction was to use his own mode his made or, who expressing agency, he did it in and it is the dis- change, says 1851, tinct of the defendants’ counsel on this assumption argument that it was It, done therefore, is the case of his when by, plaintiff legal invaded, lying permit- sums valuable adversary expend ting large money and then aid of a court improvements, invoking equity to enforce Ms at a loss or sacrifice legal right, great from the of which delay, resulting plaintiff’s are cited former argument. examples opinion These were made the time improvements voluntarily during when there neither nor motive to thereto. object it is not denied had the works that,
How defendants remained as constructed in and with the feet wheel fifty thereafter then or the water could returned to in, its put natural channel without seriously efficiency impairing .then and at a moderate enjoyed, (And power expense. is no consideration connected with the unimportant of Abraham W. Defreest in the con- acquiescence alleged *24 struction of those works.) the lease before
But, defendants just expires, voluntarily wheel make such in their as works change changes will render the restoration of the water more expensive, than it water less efficient now is. power
How does that concern ? How it in plaintiffs ought to The remain affect ? will equity plaintiffs power as as useful and as efficient it just to be. just ought The and Nail Iron Woodruff, Court, per to or fall of all the have defendants will height, in favor of the no arises are entitled. Surely equity in their it now where runs, have the water run, defendants to taken have it. because they exclusive merely appropriation, rests on the former argument, The opinion pronounced were changes that these on the expensive mainly assumption and that the lease," made since the expiration the defendants have encouraged so unreasonably delayed, as I themselves in this proof, to position. place the defendants’ it comes from is to stated, contrary, and the defendants’ made the who improvements, agent, in his 1850 as the time. counsel fixes brief Should the cost of the alteration affect plain- required % tiffs On as well also amount, question is the testimony after the alteration, question efficiency let the be notwithstand- assumed, cost greatly conflicting, a at sum, in conflict therewith, deal ing good testimony to court, or within the found $10,000 range to a tenant, comes $15,000. this: question May to to his refuse restore lessor his expiration that it will, consequence rights ground contiguous made him the term, neighboring improvements during him' do so ? $15,000 cost $10,000 entertain such an excuse % I a Will court appre- equity I extraor- not. It would be novel most and, hend think, of a view tenant party say, dinary equity mill stream make such term, erections during may, make it inconvenient and as will highly greatly expensive landlord, restore he shall ground premises and a court of him shall to retain permit excused, equity his lease has to his land- though expired, possession, give such for his as the law will lord award him. remedy damages this all the it As case seems to me presented upon proofs, and to that naked state I question, is, think, present the answer: Such facts constitute no defense. suggest little To To illustrate further: restore the water now other far so as I can than perceive, requires alterations, *25 Iron and Bail Court, per Woodruff,
Opinion, would have been in when the defend- required August, 1852, ants’ under the privileges, lease ceased. 1817, wholly had this in suppose
Bow lessors action brought Sep- tember, be claimed on the it mere that, Would ground that it would $10,000 cost or the defendants $15,000, ought not to be restrained from I % longer diverting water think, not. have Doubtless their it would duty restore resisted on the other various claims to the legal right, been denial of the or on plaintiffs’ estoppel, right, ground but those of, the because being disposed that, proposition apd tenant seen had fit at dining the'term, just before eve of its wheel, in very expiration, put feet sixty not, I have been think, could to defeat-the successfully urged plaintiffs’ legal right.
I have this restoration right treated of as of its exclusive involving only question appropriation for manufacturing purposes. legal if it be for them in natural channel just clear, its is useful for case any purpose; part plain- other tiffs tried on the in assertion injury depriving them them of to a of some west end of. sort dam the bend If the creek. it was clear that the restoration of the water was of no not call them, value case would We equitable cannot, however, say interference. case stands a dam Whether entitled to so. evidence. or a across stream is that dam, wing proof can they as a and for the above make power, reasons available I constrained to am given estab- their right conclude in and no sufficient lished, favor to equity defendants’ to award to relief justify court refusing them ,of review If position rela- tion to these there is premises, any regard misapprehension tp title their history, and truth other they any hold its than I them, have rights very regret I conceded much did leases or if put conveyances, evidence there or their acts are, rights would show been misapprehended. *26 McCartney. Cutler v. case. Statement of must that the the General Term order of conclusion My affirmed. for ah for also read affirmance, J., opinion Murray, and recovery damages, releasing limiting plaintiffs’ in case its for absolute defendant from stipulation judgment He and for new trial. ordering of thought affirmance; to the and loss defendant, circumstances of great injury from a to the the assent plaintiffs restoration, (cid:127)slight advantage building, by plaintiffs’s grantor works expensive of these during permanent after of lease, expiration and the delay an injunction improper.' rendered bring suit, concurred JJ., with Gro- Ch. J., Lott Daniels, Hunt, for affirmance and an ver arid Woodruff, JJ., injunction. also inclined to that the J., opinion plain- Daniels, tiff title whole bed of the had stream. established J., concurred James, JJ., against Murray, Mason an injunction. Term affirmed and final
Order of ordered General judgment to be assessed, for damages mandatory defendant restore the within twelve injunction from the inóriths eritry judgment.
George T. of William W. Cuyler, Assignee Cuyler, Appel Hugh
lant, Allen Anson D. McCartney, Ayrault, &c., John P. Administrator, Vernam, Richard Smith, Henry Res Swan H. Daniel Fitzhugh, Fitzhugh, pondents. delivery assignment trust for the benefit execution and
After the trust, performance upon creditors, entry trustees cannot, by assigned property, assignor taking possession court, assignment admissions, made declarations out invalidate , making intent or furnish of his or the trustees’ fraudulent own evidence receiving it, the title of the latter. to defeat