45 N.Y.S. 678 | N.Y. App. Div. | 1897
The plaintiff’s paper title to the stream in question upon the locus in quo seems to be clear. It is derived from Stephen Van Rensselaer, who by a perpetual lease dated October 24,1831, demised 352 acres, embracing the premises through which the stream runs, to Elizabeth and Thomas Hun, excepting and reserving therefrom to himself, his heirs and assigns, this stream and the soil under it, and the
The perpetual lease contained a clause that , upon the use by the lessor,, his heirs- and assigns, of the property and rights reserved,, a proportional abatement of the rent reserved should .be made. On July TO, 1860, Orlando Meads executed a release of the rents reserved in the perpetual "lease. The case does not show what right" Méads had to make the release, but assuming that he acquired title to the rents and to the right of reversion from the original landlord, yet since the landlord had before the execution of the release parted with- title to all interest in the property and -easements reserved to himself j he could not, by releasing the rents reserved upon the land.demised, impair , his grantee’s title to• such property and easements upon .which such rents were not reserved.
We can see that where one person owns the land adjoining a stream, and another owns the stream, disputes may arise after a lapse of years, as to actual possession. But possession, in the absence of evidence to -the contrary, follows the title, and in this case it is by no means, clear that because -the" defendant and her grantors had possession of the land adjoining the stream, they also had possession of the stream itself; or, if they- had. possession, it "was not a hostile possession until so asserted.. .
It is not clear from the affidavits .upon the part of the defendant that she or her grantors have ever exercised any acts, other than the occupation of the adjoining’ land, indicating a claim of right to the stream in hostility to plaintiff’s title, except the conceded acts of intimidation of plaintiff and his servants and the arrest of the latter, for obeying the plaintiff’s orders, and the defendant’s threats of their
The plaintiff and his grantors have since November, 1877, maintained a dam upon the stream, and since 1887, with the exception of one winter, have cut and removed the ice theréfrom; this is a valuable right, and has sometimes been sold for $2,000 for one season, and the defendant estimated its value, at the same sum. The acts and threats of the defendant in hostility to plaintiff’s title were the immediate occasion of plaintiff’s commencing this action.
The action is brought to quiet plaintiff’s title and to establish his right to the enjoyment of his property, free from, the vexations and annoyances of the defendant. It is not a mere demand for damages' for trespass or for ice lost. The case is much like that of Meyer v. Phillips (97 N. Y. 485). If the title to the stream and pond shall be in dispute, both the' title and the equitable remedy can be determined upon the trial. (Broiestedt v. S. S. R. R. Co., 55 N. Y. 220.) It is no longer necessary first to settle the legal title in a separate action. (Lacustrine F. Co. v. L. G. & F. Co., 82 N. Y. 476, 486.) The temporary injunction was issued in the discretion of the judge. It was vacated by the- Special Term Upon further affidavits, not in the discretion of the court, because full relief might be rendered upon final judgment, but upon the ground that the plaintiff had an adequate remedy at law. We do not think this is so. An equitable action is necessary to restrain the defendant from the trespasses and violence which she has threatened to repeat, damages for which the plaintiff could not recover in an action at. law for past damages, and equity takes jurisdiction because one action is not so bad as a multiplicity of actions.
The vacation of the injunction for the cause assigned seems to us to prejudice unduly the plaintiff’s cause of action.
The order should be reversed, with costs, and motion to vacate denied, with ten dollars costs, but without prejudice to a renewal of the motion.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate denied, with ten dollars costs, without prejudice to a renewal of the motion.