167 N.Y. 462 | NY | 1901
This action was brought to secure an injunction restraining the defendants from polluting the waters of a stream which runs through their factory and from thence over plaintiff's lands. Thelocus in quo is near the village of Milton in the county of Ulster. Defendants are engaged in the manufacture of eiderdown, plush and other fabrics, and use considerable quantities of dye stuffs of various hues, together with the equipment essential to such work. Their factory is located at the confluence of two streams about 300 feet west of the Hudson river. The water of one of these streams is pure and clear as it comes to the defendants' land through a succession of ponds. The water of the other stream is polluted by the drainage of sewers, cesspools and water closets. Soon after the establishment of their factory in 1886 the defendants found it impracticable to use the waters of both streams, and they built a sluiceway to carry the water of the northwest or polluted creek around their factory and to a point in the stream below the same. The water of the southwest or pure stream has been used by the defendants for all the purposes incident to their business, and after such use has been discharged into the stream below in various stages of discoloration *466
and pollution. In this condition it flows across the plaintiff's premises, which consist of a lot of irregular shape containing about one-half an acre of land, with a frontage of about seventy-five feet on the side bounded by the waters which meet below defendants' factory, and from thence flow into the Hudson river. The fact that the action has been tried four times, and as often appealed, bears ample testimony to the earnestness of purpose and intensity of feeling with which the contest has been waged to its present stage. A general historical review of the case would portray a fine study in the vicissitudes of litigation, but as we must confine ourselves to the consideration of the questions of law presented upon this appeal, we shall recite only such facts as are pertinent to those questions. After the second trial and appeal the Supreme Court at Special Term settled for submission to a jury the following questions: 1. "Is the use which the defendants in the operation of their factory make of the waters of the stream, mentioned in the complaint, a reasonable one?" 2. "Is the water so polluted by the operation of the defendants' factory as to render it unfit for use for manufacturing, mechanical or domestic purposes?" Upon the trial, which resulted in the judgment from which this appeal is taken, the jury answered the first of these questions in the affirmative and the other in the negative. In other words, the findings of the jury were in favor of the defendants upon the sharply-defined issue presented by the evidence. As the action was brought on the equity side of the court the findings of the jury were, of course, purely advisory for the purpose of aiding the court. The learned trial judge adopted the findings of the jury and directed judgment dismissing the complaint upon the merits. An appeal was taken to the Appellate Division, which resulted in a reversal of the judgment rendered in the trial court. The order of the Appellate Division was silent as to the grounds of reversal. Upon appeal to this court the case was, therefore, controlled by the presumption that the judgment of the trial court had been reversed upon questions of law and not upon questions of fact. (Sec. 1338, Code Civ. Pro.) Shortly before *467
the argument of the appeal in this court the respondent herein applied to the Appellate Division to so amend its order as to show that the reversal of the judgment of the trial court was upon the facts as well as the law. The learned Appellate Division thereupon amended its original order of reversal by stating "that said judgment be, and the same hereby is, in all respects reversed, vacated and set aside upon the grounds stated in the opinion of Justice PUTNAM, delivered herein, and which is hereby made a part of this order and a new trial granted, with costs to abide the event of the action." The question presented by this amended order is whether the opinion referred to can be considered as a statement in the body of the order appealed from, that the judgment of the trial court was reversed upon the facts. It is a rule of practice too well settled to require discussion that appellate courts will not look to the opinions of the lower courts for the grounds of their decisions. In this case, however, the opinion of the learned justice who spoke for the Appellate Division is made a part of the order of that court and this circumstance is, doubtless, relied upon to take the question out of the operation of the general rule. The question whether such an order is in compliance with section 1338 of the Code of Civil Procedure has only once been presented to this court since the amendments to the Code necessitated by the constitutional changes of 1895 affecting the jurisdiction of this court. In Matter ofLaudy (
We, therefore, conclude that the order of the Appellate Division must be reversed and the judgment entered upon the decision of the trial court affirmed, with costs.
GRAY, O'BRIEN, MARTIN and CULLEN, JJ., concur; PARKER, Ch. J., not voting; LANDON, J., not sitting.
Ordered accordingly.