128 N.Y.S. 761 | N.Y. Sup. Ct. | 1911
An injunction should be awarded in this case restraining the defendant from flooding the land of the plaintiff 'with water set back from the dam maintained by defendant on Salmon creek in the town of Williamson. This creek runs through plaintiff’s farm. The dam is below, on land owned by the defendant, who is a farmer and dealer in ice. Formerly this dam furnished power for a sawmill, which it would appear has not been operated during the last 20 years, but the dam has been utilized for several years in the winter time by the defendant to form an ice pond, the defendant clos
“give grant and. convey [unto the defendant] the right and privilege of flooding about one acre of land on the premises of the party of the first part * * * so that the party of the second part may maintain the ice pond as ■at present maintained, on Ms premises * * * for the term of ten years from the 20th day of November, 1909, with the privilege of five additional years, if he so desires, provided the said party of the first part is the owner of his said premises at the end of said ten years period.
“Said party of the second part agrees to lower the water so that said flooding will not be continued beyond March 15th in any one year, unless weather conditions in such year prevent the harvesting of sufficient ice by said party of the second part up to that date.
“Said party of the second part agrees to pay to said party of the first part the sum of $25.00 per year to be paid in advance on the 20th day of November in such year, and to permit said party of the first part to take from his ice house one ton of ice per year during said term, the said ice to be so taken ■at such times as said party of the second part shall be present at his said ice house.
“Said party of the second part further agrees, to grade the lane of said party of first part the full width of the same, as it now exists, from bank to bank of the depression on each side of the bridge as it now stands to a level with said bridge.
“Said party of the second part shall have the right to raise his dam so as to flood additional land of said party of the first part, provided, however, that he shall raise said lane and bridge in such event, to such a height that no part of either said lane or bridge shall be under water, and that said water •shall not extend to nor surround any of the fruit trees of said party of the first part.”
I do not forget that forfeitures are not iavored, and that where-there is doubt as to whether the engagement of a grantee should be considered as a mere collateral covenant with a right of. damages fora breach thereof, or as-a condition upon the breach of wmch a forfeiture may be declared, the law resolves the doubt in favor of the-continuance of the estate granted. But in this case it seems to me-the engagement of the defendant to grade the lane was a condition-upon the performance of which, in good time and in a reasonable manner, his right to continue to flow the lands necessarily depended.. Munro v. S. L. S. & N. R. Co., 200 N. Y. 224, 93 N. E. 516.