124 N.Y.S. 263 | N.Y. App. Div. | 1910
The action is brought to partition a farm situated • on the east bank of the Hudson river, in-the county of Warren, designated as the Ferry farm. The rights of the parties in the farm itself' were stipulated on the trial. At an parly day the owners of the farm had conveyed to a third party two separate parcels containing three or four acres of shore land, together with water rights, upon which was installed a sawmill, which came to be known as the Mott mill, and which was carried away by a flood in 1858. The water power remained idle from that.time until about 1905, when one of the defendants erected -a dam and electric power plant, as he claims, upon the old site. The plaintiff asserts that the old mill was further up the stream, and' its exact location was the point in controversy on the trial, and was important because the lower line of the farm extends only a short distance below the mill site, and not a sufficient distance for the development of another water power if the present electric light plant is located where the old mill stood.
From a careful review, of the evidence we are satisfied that the learned trial court correctly found that the present structure is substantially on the site of the Mott mill.
We think he was in error, however, in his conclusion that the easement appurtenant to the Ferry farm to take water through a
One Charles Carpenter owned the Ferry farm in 1850. He also . held title to the Mott mill property. The south line of the farm extended only about a hundred feet down the river beyond the south line of the mill property. On the 24th of August, 1850, he conveyed the mill property to one Hogle, and made the following reservation : “ Saving and reserving t'o the said Charles Carpenter, his heirs and assigns forever the right and privilege of taking out water .from the mill pond of said mill on the premises hereby conveyed in a square or circular trunk not exceeding in size a circular tube of thirty inches in diameter on the inner side and to be laid along the east side of said sawmill’s flume on a level with the head gates of said sawmill at the point where it passes said head gates; which water may be used for the purpose of driving any machinery excepting a sawmill and to be used only upon this express condition, that the said Charles Carpenter, his heirs or assigns, shall before such use pay to the said Barney P. Hogle, his legal representatives or assigns, the sum of fifty dollars, and thereafter be at one-half the expense of keeping erected and in repair the dam and such fixtures in the said river as shall be necessary to secure a full supply of water for such sawmill and other machinery as may be driven by the water from the pond created by said dam.” This deed was recorded September 23, 1850, and, Was accompanied by another deed not recorded from himself and one Aldrich also to Hogle, in which the reservation is mentioned and the language quoted. It does not clearly appear how Carpenter acquired title to the mill- property, except that he and Aldrich were assignees for the benefit of creditors by assignment from Hogle and that Hogle brought ail action compelling them to reconvey to him, and both deeds recite that the conveyance was made in pursuance of a decree of the court. From the recitals in the deed it must be assumed that Carpenter had the right .to make the reservation for the benefit of the Ferry farm, which contained land on the river below upon which a structure might be erected, but which was insufficient for the development of a water power. Especially is this so, because in the year following Hogle conveyed
The taxes assessed were only on the interest of th,e owners in the land. The easement with which it was burdened was not a lien which the taxes took priority over. ■ The right to a water power and to draw water for that purpose is a right respecting land and can be conveyed or reserved in the form of an easement. (2 Pingrey Heal Prop. § 1403.) Easements are a charge upon the estate of the owner of the servient tenement and follow such, estate into the hands of those to whom the servient tenement is conveyed. (Hills v. Miller, 3 Paige, 254.) The fact that the purchasers at the foreclosure sale permitted the land to be sold for non-payment of taxes did not relieve the land of the easement or destroy the servitude which the original grantor had placed, upon it.
But the defendants insist that even though the tax sale did not destroy the easement neither Carpenter nor his heirs ever parted with it, and that it did not pass with the conveyance of the Ferry farm because it was not mentioned in the deed. Carpenter' died owning the farm and his heirs conveyed it to Harold J. and William C. Buttolph, taking back a purchase-money mortgage through the foreclosure of which title came to the present owners. This deed did not specifically -mention the easement to take water from the mill pond. The record contains only an abstract of the deed, but the appellant’s brief states, and we assume correctly, that it conveyed the farm “ with the appurtenances and all the estate, title and
There was no error in the refusal to admit in evidence the case on appeal in Jones and Carpenter v. Buttolph. That action was merely a foreclosure of a mortgage on the Ferry farm. There was no issue raised respecting the mill lot. " The evidence of the engineer as to the fall of the river and head which could be obtained was not respecting any issue raised, but simply to show the- situation and value of the farm, and as to the present defendants was hearsay. To be sure, Mott, the then owner of the mill site, testified to the servitude of drawing water from his pond, but if what, he said was' a ' declaration against interest and, therefore, competent evidence the error in excluding it was immaterial, for there was no dispute on the present trial of the original creation of the easement.
Mor is it material so far as the plaintiff is concerned whether the People of the State own the bed of the Hudson river at the point in question. If title is in the People it is not in him and the bed does not belong to the farm. If the defendants have unlawfully built a mill and dam opposite his shore land it is only by another action and in another form that its removal can be compelled.
Interlocutory judgment modified as per opinion, and as so modified unanimously affirmed) without, costs to either party.