39 A.D. 95 | N.Y. App. Div. | 1899
The deed from Daniel T. Stevens and wife to William G. Goff, conveying the premises on which the defendant, under authority of
The right of the grantee to the possession of such part of the premises conveyed as were then or might thereafter be overflowed by the waters of the lake, was subject to the superior right reserved to the grantor. That right evidently extended to the high-water line of the lake. The reservation not only necessarily gave to the .grantor a perpetual right of flowage over the premises described in the deed up to the high-water line, but also reserved to him the right to the use of the land over which the waters did then or •should thereafter flow — in other words, the possession of such land when covered by the waters of the lake.
Our attention has been called to several authorities which hold that a riparian owner vested with the title of land covered with the water of a pond of a lower proprietor, has a right to a reasonable use of the water of such pond flowing over his land, and also the right to cut the ice formed thereon, when it can be done without injury to the owner of the pond: (Dodge v. Berry, 26 Hun, 246 ; De Baun v. Bean, 29 id. 236 ; Cummings v. Barrett, 10 Cush. 186; Hazleton v. Webster, 20 App. Div. 177 ; Bigelow v. Shaw, 65 Mich. 341.) It will be observed, however, that in each of the authorities referred to it appeared that the right which the owner of the pond had to overflow the land of the riparian owner was for mill purposes only, and hence, a restricted right, those authorities determining that in such a case a privilege on the part of the riparian owner to the reasonable use of the water on his land, or to take the ice formed from such water, may exist when such privilege can be exercised without injury to the millowner below.
Ordinarily, when a riparian owner grants to a lower proprietor on a stream the right to flow his land for mill purposes, the possession of the land thus flowed remains in the riparian proprietor, and he
It is true that, under the provisions of the deed in question, the-right of the parties to the possession of the land on the shore of the plaintiff’s pond, was, so to speak, a fluctuating one. When the-waters of the lake were low, and the place where the ice was cut not overflowed, we see no reason to doubt that the grantee, Goff,, could lawfully use the same for pasturage or other purposes, as it appears that he has done ever since the conveyance to him in 1857. Such use and possession of the land when the waters of the lake were low, however, should not be deemed hostile or adverse to the superior right of the plaintiff and his predecessors in title when the lake was full to flow said land, and when thus overflowed, to liavé the use and possession thereof. In high water when the place in question was covered by and formed a part of the lake, by the express-reservation in said deed, not only the lake, but the use of the land thereunder, was in the plaintiff or his predecessors in title. When the defendant cut the ice he took it from the plaintiff’s premises,, the latter by the terms of the conveyance having the use of the land over which the waters of said pond flowed.
There is a clear distinction between this case and those where the-owner of a pond has a right to overflow the land of a riparian owner for milling purposes alone. Under the reservation contained in the deed from Stevens to Goff, the plaintiff, as successor to the title of the grantor, possessed the right to maintain the pond in question for1 any purpose. He could use it for boating or for skating purposes as a fish or an ice pond. He was clearly entitled to the use of every part of it. We see no reason to doubt but that he could prevent others from access to its waters. He had a right to cut and sell the-
Our conclusion is that the judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed, new trial granted, costs to abide the event.