55 How. Pr. 376 | N.Y. Sup. Ct. | 1878
—This action, which was one for the recovery of the value of certain ice taken from a pond caused by a dam across the Esopus creek, in the town of Saugerties, Ulster county, was a trial by the court without a jury. On such trial the following facts were established:
The Esopus creek is a natural running stream of water emptying into the Hudson river, at Saugerties, aforesaid. About the year 1826 or 1827, a dam twenty-eight feet inhight was built across it and has ever since been maintained, which ponds and flows back the waters of the stream. One Joseph B. Sheffield, at the time of the occurrence of the events out of which this suit originated, was and is now the owner of the land upon which the dam rests, and also was the owner of all the land covered by the waters of the pond, except a small part thereof, which belonged to the Overbagh family. That family, however, by deed dated April 24,1841, for the consideration of $5,750, had conveyed to the grantor of Sheffield “ the right, privilege and liberty to overflow so much of
In February, 1876, the firm of Myer & Rosepaugh, of which the plaintiff is the survivor, purchased all the ice in the pond, formed and to be formed — there being some reservations which are not material to be stated — from Joseph B. Sheffield.
Previous to the gathering of the ice from the pond, a freshet occurred in the Esopus creek, which carried out of the pond a large part of the icé formed therein, and loosened that which was in controversy in this action from the shore, and would, probably, have swept this out also, had not the plaintiffs, by holes cut therein, fastened it to the shore and thus detained it.
Ice during the winter of 1876 was comparatively scarce and valuable. The plaintiffs had a contract for all the ice in the pond at one dollar and seventy-five cents per ton stacked, and the cost of stacking and cutting was about half that sum, leaving a profit of eighty-seven and a-half cents per ton.
After the plaintiffs had commenced to remove and gather the ice, the defendants went to the part of the pond over the Overbagh lands, by permission from such family, and cut a large quantity of ice thereon against the forbidding of the plaintiffs, and in spite of such forbidding opened a canal or channel across the pond, and over that part of it which was upon the land to which Sheffield had title, and floated the ice so cut by them through such canal or channel, and. gathered and sold the same in the Hew York market. For the value
As the firm of Myer & Rosepaugh, of which plaintiff is the survivor, claims under a purchase from Joseph B. Sheffield, the first question which this case presents is: What right of property, if any, did Sheffield have in the ice cut and removed by the defendants ? The water from which the-ice was formed was ponded and gathered by him for his own use. He owned the dam which ponded and held them, which was located upon his own property. All the land under the water of the pond was his, except a small part thereof owned by the Overbagh family, and upon and over that part of the land he held, by purchase, as the owner thereof, the right to flood and to hold the water. In a basin then, formed mostly out of his own land and in part out of the land of another, the-right to use which for that purpose had been purchased for a valuable consideration from the owner, Mr. Sheffield had gathered a large body of water for his own use and benefit. The manner of' its use and the mode of its application to his own use, was not restricted by any deed, conveyance or title-which he held, nor by any rule of law except the general one, that the flow of a natural stream shall not be so obstructed as to deprive owners below of the beneficial use and enjoyment of the stream and its flow. So long as such owners below were not interfered with, Mr. Sheffield, as the former and owner of the basin which held the water, had the right to-use such water for his own profit; he could use its momentum to propel machinery and let that right to others; he could use the water for domestic and farming purposes, and could let and rent that right to others. All these consequences follow, it seems to me, from his act of, appropriation and gathering them. The land, basin or vessel which held them, was his as owner in fee or as owner for use. By his dam he had filled that basin or vessel, and the water thus gathered or held therein was his, subject only to the exception that the beneficial enjoyment of owners below should not be inter
The judge (pages 222, 223), says: “ But it is quite as far from being true, that Mr. Lent is the owner of the water in this pond, or that it, or the ice formed from it, is his absolute property. The water in a running stream can never become, in any such sense as was claimed on the argument, the property of a riparian proprietor even if he owns both banks and the stream passes through his lands. All the property that a man can acquire in flowing water is a right
The error, with deference it is said, which the learned judge makes, is the overstatement of a general proposition and the want of a proper application of certain qualifications, the existence of which he recognized, to the general rale which he asserts and upon which his decision is founded. It may be true, as he says, that the possessor of the mill-pond is not the “ owner of the water,” and that the same is not “ his absolute property,” provided, the judge means that the owner of the pond does not own absolutely and exclusively all the water therein. This, of course, must be true, for if it were not the riparian owner above could use the entire water of the stream, and thus prevent its natural flow and beneficial enjoyment by the owners below. It is also, however, true, and this the judge admits when he says, “he may use it for his cattle or his household, or upon his mill-wheels,” though he fails to give it weight, that the owner has the absolute property in the use of the water as it flows, not only in the application of its momentum, but also in its removal from the stream for consumption, provided, the usefulness of the stream to the owners below is not impaired. And it follows from this concession, because it is one of the rights of absolute property, that if such ownership as has been described is in one man, that he may convey the right he thus owns to another, the buyer taking it with the same limitations, that the title which he acquires to the water — liquid or solid — is subordinate to the rights of owners below, which must not be interfered with. To this extent then, there is absolute ownership in water — or its use, if that expression be pre
In Mill River Wollen Manufacturing Company agt. Smith (34 Conn., 462) it was held: “ That owners of the waters of' a mill pond, own the iee formed vpon it, and the riparian proprietors had no right, as owners of the soil, to remove it.”
In the State agt. Pottmeyer (33 Indiana, 402; also reported in 5th American Reports, 224) it was held: “When the water of a flowing stream, running in its natural channel, is congealed, the ice attached to the soil constitutes a part of the land, and belongs to the owner of the bed of the stream, and has the right to prevent its removal.” This case is worthy
In Elliott agt. The Fitchburgh Railroad Company (10 Cushing, 191), in Brown agt. Brown (30 N. Y., 519) and in many other cases, it has been held that the ponder of waters has a right to make any use thereof which is not inconsistent with the rights of owners below. The effect of this doctrine, which is identical with that stated in the beginning of this opinion, is, that this right of use, which may be to propel machinery, for domestic purposes, for sale and for hire, is property of which the owner cannot be deprived by a mere wrong-doer. If owners below are interfered with, they will be protected against the improper or wasteful use of the water by the owner above, but as against all others who are -strangers to those rights, the owner of the pond will be protected in the enjoyment of the use of the water, whether it be carried to his mill to propel his machinery, to his house, or barn for consumption, or to the property of others to whom he sells or lets it for like use, and this right of use of the water is without regard to its state or condition. It might as well be said that its use is confined to the frozen state entirely, as to say it is confined to the liquid solely. This principle, so long and well settled, must control this cause.
The only seeming difficulty which this case- has presented to my mind, grows out of the fact that the ice in controversy was taken from that part of the pond which was above the
First. The defendants not only removed ice from that part of the pond which was upon the Overbagh land, but against the forbidding of the plaintiff they cut a channel across the entire pond, thus removing and destroying ice which was formed in that part of the pond which was upon the Sheffield property, and for the ice thus destroyed at least there must be á recovery.
Second. By the conveyance of the Overbagh family, the right to flow back the waters, and hold them in the pond for the benefit and use of the owner thereof is transferred, and that right Hr. Sheffield now has. There was no limitation whatever upon the use to which the ponder could put the waters, nor any reservation whatever to the Overbagh family in the water. In short, the effect of the Overbagh deed was to enable the owner of the right, by a dam, to make a large basin to hold water for his own use and purposes. Whatever rights, if any, which the Overbagh family had, or retained in the water, were subordinate to those of the owner of the right to pond. Being subordinate to those rights, the owner of the pond having need of so much thereof as was frozen, and such use being consistent with his ownership, as we have endeavored to show, no act or consent given by any of the Overbagh family could deprive the owner of the ponded water of the use to which he had applied it. This very principle is decided in Mill River Woolen Manufacturing Company agt. Smith (10 Conn., 462), before cited, in which it was held that the owner of the pond as against the owner of the land, could prevent the removal.of the ice. If it can be done because the owner needs the water in its liquid form, it can be done when the owner requires and needs it in its congealed form. The right to pond being for an unspecified purpose, its right of use and its manner of use depend upon
The cause has thus far been considered upon the abstract right of the plaintiff obtained by the purchase from Sheffield, and our conclusion is that the action can be maintained upon that ground alone. There is, however, another view which is worthy of attention. After the purchase, Myer & Rosepaugh, who were the original plaintiffs (and to all their rights the present plaintiff as survivor succeeds), by their own exertions in a freshet had saved the ice in controversy from being lost. By anchoring it to the shore and by labor performed thereon, they were in actual possession when the defendants took and converted it. If, with the consent of Mr. Sheffield, the plaintiffs had taken from the pond a quantity of its water, and being in actual possession, the defendants had deprived them of it, could the plaintiffs have recovered ? And when a part of the water has assumed the form of ice, and is thus separable from the rest of the water, and in that form capable of being possessed and held — is in fact thus held and possessed and retained in position for removal—can such possession be taken from them and they be remediless ? That which was thus possessed by them and taken from them by others was valuable and can be recovered for, though it still lay in the pond where they had seemed it for removal and stacking, though it had not yet been actually removed or stacked. All the possession which could be taken had been taken, and what had been was so marked and visible, and exercised over and towards property capable of actual possession, that in such possession the plaintiffs should be protected.
The conclusion is that the plaintiff is entitled to judgment. The plaintiff’s attorney will prepare findings which will be settled on notice.