Petrie v. Trustees of Hamilton Coll.

• Decision Date: 21 March 1899
• Citation: 158 N.Y. 458,53 N.E. 216
• Parties: PETRIE v. TRUSTEES OF HAMILTON COLLEGE.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 458

53 N.E. 216

PETRIE

v.TRUSTEES OF HAMILTON COLLEGE.

Court of Appeals of New York.

March 21, 1899.

Appeal from supreme court, appellate division, Fourth department.

Action by Jerome R. Petrie against the trustees of Hamilton College. From an order of the appellate division reversing a judgment in favor of defendant, entered on the report of a referee (40 N. Y. Supp. 781), defendant appeals. Reversed.

The object of this action was to restrain the defendant from diverting any water from South brook, so called, upon the premises of the plaintiff, and from diverting more than one-tenth of the water from Kirkland Glen brook, so called, also upon the premises of the plaintiff. The main ground upon which this relief was sought, according to the allegations of the complaint, was that the defendant had made false representations in order to procure a conveyance of certain water rights from the plaintiff. Upon the trial it appeared that the plaintiff owned a farm of about 56 acres, crossed by two small brooks, each having its source in an independent spring upon the land of one Scollard, some distance above the premises of the plaintiff. As measured in May, 1895, the north spring furnished 151,200 and the south spring 78,872 gallons in 24 hours, while the north branch, just above plaintiff's land, furnished 256,845 gallons, and the south branch 123,110 in the same time. The two springs are over 500 feet apart, and have no connection. A small stream flows from each, in a defined channel through a separate ravine, across the land of said Scollard and one Ward, when they reach the premises of the plaintiff, and flow across his land still about 500 feet apart. About three-quarters of a mile from their sources, and less than half a mile below the land of the plaintiff, they unite, and flow in one stream about two miles to Oriskany creek. Just below the junction the daily flow in May, 1895, was 412,342 gallons. On the 26th of July, 1894, a representative of the defendant called upon the plaintiff ‘for the purpose of obtaining from him the privilege of diverting the water flowing across his land to Hamilton College sufficient to supply its waterworks, which the defendant contemplated constructing, and the plaintiff executed and delivered a writing, of which the following is a copy: ‘This conveyance, made 26th day of July, 1894, from J. R. Petrie to the trustees of Hamilton College, witnesseth: Said J. R. Petrie grants and conveys to the said college corporation the right, privilege, and easement to take from and divert the waters of Kirkland Glen brook, which runs over my land, in the town of Kirkland, county of Oneida, sufficient to supply the Hamilton College waterworks, to be constructed. The consideration of this grant is one dollar.’' This instrument was duly signed and sealed by the plaintiff in the presence of a subscribing witness, and delivered to the defendant. Prior to the making of said conveyance the branches running across the plaintiff's land had no name, and were designated in such writing as the Kirkland Glen brook. A member of the committee representing the college testified, without objection, that just before the plaintiff executed this instrument the following conversation took place: ‘I told him the college contemplated building waterworks; that I understood he owned some land over which flowed these streams of water. I asked him if he knew of any name for these streams. He replied he never heard of any name being given to them. I then told him I had dubbed them the Kirkland Glen brook, in order to have them designated by some title to appear on the record. I told him we wanted sufficient water to supply the college waterworks, and also the right to lay pipe to conduct the water down to the college. Plaintiff asked how much water we wanted. I said impossible to tell him how much would be used, but we wanted a sufficient supply for Hamilton College waterworks. I told him no living man could tell how much water it would take, * * * but I want sufficient water to supply the college waterworks. He asked me where the college proposed to locate the reservoir. I said not yet decided what we should do. That I had seen Scollard that morning, and he had told me the place to go was on his farm, unite the two springs, and take the water from them. * * * I told him we had a conditional agreement with Ward to build on his land if the college so desired.’ At the same time that the conveyance from plaintiff to defendant was executed, the plaintiff executed another instrument, whereby he granted ‘to the said college corporation the right, privilege, and easement to lay and maintain conduit pipes for water across his land in the town of Kirkland, county of Oneida, in the direction of Hamilton College Buildings, from the premises of Charles Ward and James I. Scollard, for the privilege of supplying the college waterworks below; the exact line for said pipes to be located when said corporation has completed plans for such works, and when ready to construct the same. The consideration of this grant is one dollar, and, if any damage is done to growing crops by reason of said work, then the trustees of said college will pay said damage.’ Immediately after these papers were signed, the plaintiff took the committeeman to the south spring, said it was the better of the two, and was the place to build the reservoir. About the time of the execution and delivery of these instruments the defendant obtained similar privileges from the landowners above and below the land of the plaintiff. Subsequently the defendant made preparations to build a reservoir, and divert the waters from the springs forming the sources of both of the brooks flowing across the land of the plaintiff, claiming the right to do so under said grant. The plaintiff testified, among other things, that the conversation between him and the committeeman was that the defendant was to take water from the north branch only, and but one-tenth of the water flowing therein. The only person present when the arrangement was made corroborated the version of the...