195 A.D. 271 | N.Y. App. Div. | 1921
The locus in quo of this litigation is in Washington and Saratoga counties in this State, with the Hudson river separating the main parts of the properties involved. The action was commenced in June, 1912. It was tried before the court without a jury and the trial was finished some six or seven years later. As both parties have appealed, for convenience the parties will be referred to as plaintiff and defendant. The defendant is a domestic corporation, and owns and operates a pulp and paper mill at or near Fort Miller, N. Y. This plant is located .on the east bank of the Hudson river, at which point it has a dam extending across the river, by means of which dam it impedes the flow of the water, and confines it, releasing it to turn its wheels, thus creating the power used. The river runs practically north and south through and between those properties. Defendant owns real estate on each side of the river against which the ends of the dam abut. T,he lands on the east side of the river were acquired by defendant and its predecessors some years before the opposite lands on the west side of the river. As early as 1804 defendant’s predecessors obtained the right from the State to erect on the east side of the river a wing dam, viz., a dam extending out into the river but not beyond its center line; such dam was built and maintained for several years prior to the year 1882. In the month of July, 1882, the predecessors of defendant acquired the land on the west or opposite side of the river by deed, in and by which rights, other than the fee, were attempted to be conveyed, and were conveyed so far as the grantor had such rights. The recital in the deed for that purpose reads as follows: “ The right to build a dam across
Judgment accordingly with disapproval of the findings of fact and conclusions of law contrary to this opinion.
All concur.
Judgment as to damages reversed as excessive, and new trial granted, with costs to appellant to abide event, unless the plaintiff within twenty days stipulates to reduce the damages to $150; upon such stipulation the judgment is so modified and as modified affirmed, without costs. Judgment so far as it denies the injunction affirmed, without costs.