Corning v. . Troy Iron and Nail Factory

40 N.Y. 191, 1869 N.Y. LEXIS 17

• Court: New York Court of Appeals
• Decided: March 20, 1869
• Status: Published

Opinions

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It appears, from the order of the General Term, that the judgment was reversed upon questions both of fact and law. It is, therefore, the duty of this court to determine, whether the order was proper upon either ground. It was assumed, by the parties upon the trial, that Stephen Van Rensselaer was, prior to 1788, the owner of all the lands and water rights to be affected by the judgment rendered in the action. The plaintiffs deduced from him a paper title of seven acres of land to themselves, and proved that possession had been held, under this title, for a great number of years. This piece, together with other land, was conveyed by Van Rensselaer, by deed, to Jeremiah Lansing, in 1788. Lansing conveyed the piece, with other lands, to David Defreest, in 1789. The latter deed contains the following exception: "Excepting and always reserving one acre of land on the south side of the creek, and adjoining to the creek, where the line crosses said creek, unto Stephen Van Rensselaer, his heirs and assigns, forever." The acre intended to be excepted in the last deed, however located, was included in the deed from Van Rensselaer to Lansing. A paper title to the excepted acre was shown from Van Rensselaer to the defendant. It is insisted by the counsel for the plaintiff, that the defendant failed to show title to this acre, for the reason that Van Rensselaer selaer, being a stranger to the deed from Lansing to Defreest, could acquire no title by an exception or reservation contained in that deed. This point is immaterial, as the plaintiffs showed no title whatever to this acre, and they must stand upon their own title unaided by the weakness of that of their adversary. It was proved that a stream of water, known as the Wynant's kill, ran through the seven acres, including the excepted acre, making an elbow on the south side, containing about one acre. Possession of this elbow, including the lands on the south side of the creek, has been held under the exception in the deed from Lansing to Defreest for a great number of years, and long enough to perfect a title by adverse possession. It is insisted by the counsel for the appellant, that this acre has been so located as to embrace the entire bed of the stream, and that the plaintiffs' land is bounded by the north bank. His argument, that the object of the exception was to secure the entire water power to Van Rensselaer, and that ownership of the entire stream is necessary for this purpose, rests upon no sufficient basis. It does not appear that such was the object of the exception. The counsel further insists, that it appears, that the excepted acre was so located, from a lease dated in February, 1809, from David Defreest to John Converse, then in possession of the lands now claimed by defendant on the south side of the creek, of a strip of land upon the north side of the creek. The description of the land leased is as follows: Beginning at a marked white oak tree, standing in the south line of the party of the first part on the north bank of the Wynant's kill, at the distance of twenty links from the water in the said kill; then giving various courses and distances to a black ash tree, marked and standing on the north bank of the Wynant's kill, at the distance of twenty-five links from the water in said kill; thence up the stream as it winds and turns to the place of beginning. This lease was for twenty-one years, and contained a covenant on the part of the lessee to enclose the premises, and a further covenant that he would not during the time, by means of a dam or other obstruction placed in the stream, cause the overflow of any of the lands of the lessor. It is argued that the latter covenant shows that the lessor was not the owner of any portion of the creek, but I do not think such inference warranted thereby. The lessee, in the absence of such covenant, would have no right to overflow the lands of the lessor, and if the lessee was the owner to the middle of the stream he might, by placing obstructions in the stream, upon his own land, cause the inundation of that of the lessor. On the 1st of May, 1817, Abraham and John Defreest, who had succeeded to the title of David, leased to John Converse, who was acting in behalf of the defendant, the entire seven acres now owned by the plaintiffs, by a description, also including the excepted acre, together with the benefit and use of all falls and water upon, running through, or adjoining the said premises, excepting the acre, in the precise language of the exception in the deed from Lansing to Defreest (supra) for the term of thirty-four years and nine months. Accepting this lease was conclusive upon Converse and those for whom he acted, that the excepted acre was wholly upon the south side of the creek and extended no farther than the middle of the stream. The defendant entered into possession and occupied under this lease for the entire term. These facts show that the defendant was bound to restore the land with the water running in its natural channel, at the expiration of the lease, unless relieved from such obligation by some immediate act of the lessors, or of those holding their title. While in possession under this lease, in 1839, the defendant constructed an artificial channel for the stream, by which it was wholly diverted from the seven acres, and conducted across the excepted acre, and used upon, a large overshot wheel, constructed to operate the extensive machinery of the defendant. At this time the plaintiffs were the owners of six acres upon the stream, below the premises in question, upon which was extensive machinery, operated by them, by means of the water power of the creek, but having no interest in the seven acres. The plaintiffs drew down their pond at this time, to enable the defendant to excavate a tail race from its wheel to the bed of the stream. It is insisted by the defendant that this precludes the claim of the plaintiffs to have the stream restored to its natural channel, thereby causing a great loss to the defendant in respect to the operation of its machinery. The answer to this is, that the plaintiffs base their claim to such restoration upon their title to the seven acres, which they obtained, in part, in 1852, and the residue in 1856, and that it was known to the defendant at the time that the plaintiffs then had no interest therein. It was, therefore, not then in their power to affect any right appurtenant to the reversion in the seven acres, as against the then owners or those subsequently acquiring the title. It is further insisted by the defendant, that Defreest, one of the defendant's lessors, was precluded from requiring the restoration of the stream, by his assent to its diversion at the time it was made in 1839, and that if his right was thus cut off, no grantee from him could assert, under his grant, any better right thereto than he had. The conclusion is, doubtless, correct under the facts of this case, as the water was in fact diverted at the time Defreest conveyed to the plaintiffs. This was sufficient to put the plaintiffs upon inquiry as to any right, legal or equitable, of the defendant to make the diversion. Such inquiry would have led to information of the acts of Defreest, and the plaintiffs are, therefore, chargeable with notice of such acts. They are not, therefore, to be regarded as bona fide purchasers in this respect, but take the land subject to any legal or equitable right of diversion the defendant had, as against Defreest. It must, therefore, be determined what such right, if any, was as against the latter. The case shows that Defreest lived at the time in the immediate vicinity, was frequently at the place while the work was in progress, conversed several times with the managing agent of the defendant, expressed to such agent his opinion that the change would improve the water power, and would benefit his property in the vicinity. That he knew that the contemplated change and improvements would cause the expenditures of a large sum of money, and that while these large expenditures were being incurred, made no objection to the diversion of the water. It is claimed that he must have known, from the amount of the expenditure and the character of the improvement that the diversion was designed to be permanent. The latter fact is strongly controverted by the plaintiff, but, in considering this question, I shall assume its truth. It is insisted by the defendants that these facts constitute an estoppel upon Defreest from asserting any claim to a restoration of the water to the prejudice of the defendant. The answer to this position is, that the defendant at the time had not only the possession of the seven acres, and the full control of the water belonging thereto, but, also, the right of possession and control for the unexpired term of the lease, a period of thirteen years, and that during that time Defreest had no right to object to any use of the stream by the defendant, except such as worked an injury to the reversion, which the diversion of the stream, during that period, clearly would not. That the defendant, at the time, knew that upon the expiration of the lease their right to divert the water would cease under it, just as well as Defreest did, and there was no pretense of any other claim by the defendant to any other right to divert the stream from the seven acres. The defendant was not, therefore, in any sense, misled or deceived as to its right by anything done or omitted by Defreest. The case does not, therefore, come within the principle of the class of cases cited by defendant's counsel, holding that when one, in the belief that he has title, makes improvements with the knowledge and encouragement of the owner, such owner shall be estopped from asserting his title to the prejudice of the party having made such improvements. The estoppel is based upon the fraudulent conduct of the owner. There is no such reason applicable to Defreest. He was not estopped, and it follows that the plaintiffs, as his grantees, are not. There is no pretense of an estoppel upon the co-tenants of Defreest, who are also grantees of the plaintiffs. It is insisted by the defendant, that the plaintiffs acquired no right to a restoration of the stream, under their deed, although such right existed in their grantors, for the reason that the diversion was prior to the grant, and that the defendant was holding the stream adversely at the time. The land was at the time in the possession of the grantors. There is no question but the title to that passed by the grant to the plaintiffs, with everything incident or pertaining thereto. The right to the flow of the stream in its natural channel was an incident to the land. 3 Kent's Com., 439. 1st R.S., § 147, p. 739, declares that grants of land shall be void when such lands shall, at the time, be in the actual possession of another, claiming under a title adverse to that of the grantor. This applies to an adverse holding of land, and not to such holding of some right appurtenant thereto, which passes with the land. The purchaser of the land is entitled to such appurtenant rights. (Mason v. Hill, 4 Barn. Adolphus.) If follows that the plaintiffs had the right to have the stream flow in its natural channel along the seven acres purchased by them. For a violation of this right by the defendant, they had a right of recovery, without proof of actual damage, irrespective of any use of the water power by them. (Tyler v. Wilkison, 4 Mason, 400; 3 Kent, 539; Adams v. Burney, 25 Vermont, 225; Embury v.Owen, 6 Exch., 368; Townsend v. McDonald, 2 Kernan, 381.) It follows, that the plaintiffs were entitled to recover damages of the defendant for the wrongful diversion of the stream. It may now be assumed as settled that the plaintiffs could, in the same action, obtain all the relief to which the facts entitled them, arising out of the diversion of the water, whether such relief was legal or equitable, or both. (Code, § 167.) They were clearly entitled to recover damages, and the judge, therefore, erred in dismissing the complaint, and the General Term were right in reversing the judgment and ordering a new trial. This leads to an affirmance of the order appealed from, and to final judgment against the defendant; but whether such judgment shall be for damages only, or in addition thereto, shall award a mandatory injunction for the restoration of the water to its natural channel, remains to be considered. It is urged by the defendant that the latter ought not to be included, for various reasons, the principal of which are, that it would be productive of great injury to the defendant, and be of little benefit to the plaintiffs. The former fact is established by the evidence. The latter rests upon the hypothesis that, inasmuch as the plaintiffs have not heretofore used the power and have made no preparations to use it, they do not desire it for use. The facts show that its restoration would give a power sufficient for a grist-mill grinding fifteen bushels per hour, or a cotton factory with forty looms. The question then comes to this, whether the defendant, who has wrongfully diverted from the plaintiffs a stream affording such a water power, shall be permitted to continue such wrongful diversion, and thus to deprive the plaintiffs of what is clearly theirs without their assent, upon the ground simply that its restoration would be a great damage to it. In other words, that by its continuance wrongfully to appropriate to its own use the property of the plaintiffs, it derives a much greater benefit than the plaintiffs could by being restored to their own. The bare statement of the question would seem to suggest the only proper answer. The very idea of justice is to give to each one his due. The use of the natural flow of the stream is the due of the plaintiffs, and to justify withholding it from them requires some better reason than loss to the wrongdoer consequent upon its restoration. It is insisted that the equitable right of restoration has been lost by delay. The statute of limitation, either at law or in equity, has not attached so as to bar the right. The case has, therefore, no analogy to that class of cases where equity has refused relief upon the ground that the legal remedy was barred by the statute. The defendant has expended no money upon improvements since the expiration of the lease, consequently the principle of the cases holding that where, during the delay of a party in asserting his right, expenditures have been made in improvements, equity will not interfere, do not apply. Lewis v. Chapman (3 Beavan), is one of this class. The plaintiff sought to restrain, by injunction, the publication of a work of which he was the owner of a copy-right. It appeared that he had lain still for six years and upwards and seen the defendant expending his money in printing the work, c., c.; upon this ground, equity refused to relieve the plaintiff. There are numerous cases of this description found in the books, but they all rest upon the same principle. All there is of the delay in this case is, that the plaintiffs finding the defendant using their water power have permitted it to continue such use for about four years. Clearly this indulgence furnishes no reason for the refusal of equity to aid the plaintiffs in the recovery of their legal rights. It is insisted by the defendant, that equity ought not to interpose in behalf of the plaintiffs, for the reason that they do not want the water power, afforded by the stream, for use. This is a mere assumption. It is true, they have not heretofore used the power, perhaps, for the very good reason that they have not had the ability to use it, on account of the defendants withholding it from them. It is said that the plaintiffs have erected no machinery for that purpose. This is true. The plaintiffs have not constructed machinery to rot while litigating with the defendant for the recovery of the stream. But if the facts claimed were clearly established, it would not protect the defendant in wrongfully withholding the stream. No man is justified in withholding property from the owner when required to surrender it, on the ground that he does not need its use. The plaintiffs may do what they will with their own. Upon established principles, this is a proper case of equity jurisdiction. First, upon the ground that the remedy at law is inadequate. The plaintiffs are entitled to the flow of the stream, in its natural channel. Legal remedies cannot restore it to them and secure them in the enjoyment of it. Hence the duty of a court of equity to interpose for the accomplishment of that result. A further ground requiring the interposition of equity is to avoid multiplicity of actions. If equity refuses its aid the only remedy of the plaintiffs, whose rights have been established, will be to commence suits from day to day, and thus endeavor to make it for the interest of the defendant to do justice by restoring the stream to its channel. If the plaintiffs have no other means of recovering their rights, there is a great defect in jurisprudence. But there is no such defect. The right of the plaintiffs to the equitable relief sought, is established by authority as well as principle. (Webb v. The Portland Manufacturing Co., 3 Sumner, 190, and cases cited; Tyler v. Wilkison, 4 Mason, 400; Townsend v.McDonald, 2 Kernan, 381; 2 Story's Equity, §§ 901, 926-7; Angell on Water Courses, §§ 449-50.) It is further insisted by the defendant that equity will not interpose until the right has been settled at law. That, formerly, was the universal rule, where there was any substantial doubt as to the legal right. (Gardner v. The Trustees of Newburgh, 2 John. Chan., 162.) But that rule no longer prevails in this State. We have before seen that all the relief to which a party is entitled, arising from the same transaction, may, under the Code, be obtained in one suit. Besides, there is no doubt as to the legal right in the present case. My conclusion is, that the plaintiffs are entitled to the aid of equity in restoring the stream to its natural channel, and this whether the loss to the defendant is more or less. The defendant was bound to restore the stream upon the expiration of the lease, equally with the land. The order appealed from should be affirmed, and final judgment given against the defendant for the damages sustained by plaintiffs, and that they restore the stream to its natural channel. It is not important to determine, in this case, whether the plaintiff's boundary is the center of the stream, or the south bank; I have not, therefore, discussed that question.