102 N.Y.S. 5 | N.Y. App. Div. | 1907
The appellant is the owner of several acres of land in the town of Tuxedo, Orange county, and of a water right in the adjoining town of Monroe, and the respondents are the assessors of the town of Monroe. This proceeding was 'brought to set aside an assessment made by the respondents in the town of Monroe upon the water right owned by the appellant. Mt. Baslian pond is a body óf water, in .extent about a mile square, located in the town of Monroe. The outlet of the lake runs southerly, and at its head there- is' a dam, with gates by which the amount of water released from the lake may be augmented or diminished. S'ome three or- four miles southerly from the outlet, and' beside the stream, the 'appellant owns about seven acres of land, well within the town' of Tuxedo, The lands of several different owners intervene between the appel
The learned court below,- in quashing the writ, treated the appellant’s right to use this water as corporeal property, and spoke of it as physically lying in the town of Monroe and distant, from the mill property in the town of , -Tuxedo. This erroneous- premise has. naturally led to a false conclusion. The right did not have physical being ; it is incorporeal in its nature. The Court of Appeals has discussed the nature of the appellant’s right to use'the water of Mt. Bashan pond. In Hall v. Sterling Iron & R. Co. (148 N. Y. 432) one of. the questions presented for- consideration pertained to - the plaintiff’s ownership of that right. The paper title to one-half of his mill property had come to him with an omission in one of the mesne conveyances of any words of grant specifically addressed to the water right-; it contained this language: “ Together with all and singular the devices, buildings, rights, members, privileges, advantages, hereditaments and appurtenances to the same belonging or in any wise appertaining.” The court decided that, although the water right was not specifically mentioned or, otherwise referred to, % it was an appurtenance to the land and passed with it. The opinion states: “ The water flows through the natural outlet of Mt. Bashan pond. This watercourse passes through the plaintiff’s.premises. It is used in connection with the land, and cannot well be severed therefrom. It consequently is attached as an incident to it.” And the court held that Hall’s title to the whole premises was good.
That the right, if valuable, may be taxed is not • denied (People ex rel. Niagara Falls P. Co. v. Smith, 70. App. Div. 543), but it should.be taxed as a part of the real estate to which it appertains and to which it is incident.
,It cannot he doubted that water rights incorporeal in their nature may, under certain circumstances, exist independent of lands, but that is not this case.
The conclusion is that the order and judgment appealed from should he reversed and the assessment annulled, with costs.
Hibschberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Judgment and order reversed, with costs, and assessment annulled.