142 N.Y.S. 563 | N.Y. App. Div. | 1913
TMs action was brought to recover damages for trespasses committed by the defendant by rowing, bathing and fishing in the waters of Tripp pond, in the town of Warrensburgh, Warren county, in the summer of 1910. The complaint alleges that at the time of the trespasses complained of the plaintiff was the owner and in possession of that portion of Tripp pond which lies northerly of the lands of Mary J. Tennyson, and that on divers dates the defendant wrongfully entered upon the premises and rowed, fished and bathed therein to her damage. The answer contains a denial of each allegation of the complaint, and sets up four separate defenses, all of which have either been abandoned or overruled by the determination of the court at the trial without a jury. Judgment has been entered for one dollar damages, with the costs of the action, and the defendant appeals from the judgment. The record contains no case.
Great lot No. 80 in Hyde township, in the town of Warrens-burgh, Warren county, is divided into four practically equal parts. Tripp pond is located in the east half of this great lot, and is about one-half mile long and one-eighth to one-quarter of a mile in width. The easterly half of this great lot is known upon the maps as parcels or subdivisions 3 and 4, and the plaintiff claims, and the evidence warrants the claim, that she is the owner of all of the pond with the exception of a small portion at the southerly part thereof, which lies within the limits of lands owned by Mary J. Tennyson, whose father has a life lease of the same. The Tennysons own the lands bounding the pond on the south and east, but, with the exception of the small portion on the extreme southerly limit of the pond, the waters of the pond are clearly excluded in the deeds under which they hold the lands, and there does not appear to be any serious contention that the plaintiff is not the owner of the lands -underlying this pond. The defendant does not contend that he has not rowed, fished and bathed in this pond, but he urges a right to do so as the guest of Louisa F. Wilsey, who purchased one hundred and nine acres of land of Andrew1 D. Tripp, plaintiff’s predecessor in title, bordering upon this pond, and it is claimed that in the negotiations leading up to the
The judgment appealed from should be affirmed, with costs.
Judgment unanimously affirmed, with costs.