20 Barb. 311 | N.Y. Sup. Ct. | 1855
The plaintiff alleges in his complaint that he “ for a long time past has been, and still is, the owner and in the possession”.of the lands and premises ; and the defendants in their answer put the allegation in issue, by denying it generally, and also by averring that they “ have not any knowledge or information thereof sufficient to form a belief.” In order to determine whether a “claim of title to real property arises on the pleadings” thus far given, within the meaning of section 304 of the code, it is important to, consider what was' necessary to be proved on the part of the plain
If under the liberal system of pleading of the code, the plaintiff might, under this complaint, recover as a reversioner for an injury to his reversionary interest, he will not, at least, looking at the pleadings alone, be regarded as making any such claim.
It is further alleged in the complaint, that the plaintiff was “ entitled to have and enjoy the benefits and advantages of the water ” of the stream or water-course across his land; and this allegation is denied in the answer. This right is not averred, in terms, to be an incident to the land, but upon the cáse, as stated in the complaint, it is prima facie an appurtenant to the premises. It would be supported by proof of possession alone. And if the issue is broad enough to admit evidence of a right ’ independent of the land, derived from an agreement or license, I think it must not be understood from the complaint alone, that such a right was intended to be averred. The plaintiff will be regarded as intending to claim the use of the water as an appurtenance. In this view the right is involved in the issue as to the possession. And no claim of title to real property arises on the pleadings relating to it, for the reason already stated, that a claim of possession is not a claim of. title.
The case of Otis v. Hall, (3 John. 450,) decides that such; a license is valid, and also that setting it up does not raise a question of title. The action was a special action on the case,' for overflowing the plaintiff’s land, by means of a mill-dam erected by the defendant on his own land. On the trial the defendant proved that he had permission to erect the dam, and overflow the plaintiff’s land if necessary for the use of the mill. On a motion by the plaintiff for full costs, under a statute then existing, on the ground that the title to lands came in question, the court, after stating the question, and expressing the opinion that the freehold or title did not come in question, within the purview of the statute, say: “ The case bears no analogy to that of Heaton v. Ferris, (1 John. 146.) Here was no claim of a right of entry into the plaintiff’s land, nor of any direct use or enjoyment of it. The defendant merely sets up a right to use his own land in the manner he has done, by erecting the dam; that any consequential injury to the plaintiff w’as waived by his express license for that purpose; and that it was a mere damnum absque injuria, for which the plaintiff had no right of action. The statute only applies to cases where a claim or. question to the direct use by entry on another’s land comes in controversy. This and many other cases of consequential injuries as for nuisances erected on the defendant’s own land, do not in any manner bring the title in question. Nor does the setting up a leave or license by the plaintiff raise a question as to the title, or give any right or interest in the plaintiff’s land.” If a license to flow land with water is valid, it would seem that a license justifying the alleged wrongful diversion of water from it must be, at least until revoked. The case of Chandler v. Duane, (10 Wend. 563,) was a motion for costs to the defendants, and similar to that last cited. Sutherland, J., says, “ the action and the ground of defense, and all the circumstances in the case, were precisely
Viewing the portion of the answer in justification of the act complained of in the complaint, as setting up a mere license, it is very plain that no question of title was raised by putting the same in issue. (Mumford v. Whitney, 15 Wend. 380.
Wickham v. Seely, 18 id. 649.)
The case of Powell v. Rust, (8 Barb. 567,) is entirely unlike the present. The decision in that case, that a claim of title arose on the pleadings, was placed upon the ground that Bust claimed, by virtue of an agreement with the plaintiff, the property in, and the right to enter with teams and take away certain growing trees and shrubs, which were part of the land. Here, no transfer to the defendant of a right to the use of the water is asserted, but only a permission to do an act by which the diversion of the water was effected. If the license may not be revoked, it is not because it conferred any interest in the use of the water upon the defendant, but because it operated as a yielding up and relinquishment of the water diverted. (Liggins v. Inge, above cited.)
Mumford v. Whitney, above referred to, is the case of a claim by the defendant to a permanent interest in the plaintiff’s land. Davis v. Townsend, (10 Barb. 333,) contains only the same doctrine.
For the foregoing reasons,-1 am of opinion that no claim of title to real property arises on the pleadings in this case ; hence the decision at special term should be reversed.
Selden, Johnson and T. R. Strong Justices.]