5 Wend. 523 | N.Y. Sup. Ct. | 1830
By the Court,
The quit-claim from Denning to Caldwell enured to the benefit of Hatch and his grantees, and gave to the convejmnce to Hatch the same legal effect and operation as though it had been prior to the mortgage to Denning. Jackson v. Bull, 1 Johns. Cas. 90. Jackson v. Murray, 12 Johns. Rep. 201. Jackson v. Stevens, 13 id. 316. 16 id. 115. What then would have been the effect of the convej'ance to Hatch as between him and Caldwell his grantor, if the. residue of the premises had been retained by him instead of having been mortgaged to Denning 1 The evidence shews that the principal value of the defendant’s premises consists in the waler privilege, and that it will be entirely destroyed if the dam is lowered. The dam, .as it now exists, was erected in October, 1813, prior to the conveyance to Hatch. It was admitted that it caused the water to flow back beyond the defendant’s line upon the premises of the plaintiffs.; and it appears that, although the back water thus produced does not impede the operation of the plaintiffs’ mill, yet the establishment would be much more valuable if the defendant’s dam was removed, as they would .then be able to increase the diameter of their wheel. Upon this state of facts, it appears tome there can be no question that Hatch acquired an absolute right to maintain the dam at the height at which it was when he purchased from Caldwell, and that he or his grantees are not responsible to Caldwell or those who hold under him for any injury which the adjoining premises may receive from an overflow of water produced by the dam. Caldwell intended to sell and Hatch intended to purchase a valuable water privilege, for which a
There was no error, therefore, in the charge of the court below, and the judgment must be affirmed.