Hall v. Sterling Iron & Railway Co.

• Decision Date: 18 February 1896
• Citation: 148 N.Y. 432
• Court: New York Court of Appeals Court of Appeals
• Parties: FRANK A. HALL, Respondent, v. THE STERLING IRON AND RAILWAY COMPANY, Appellant.

148 N.Y. 432

42 N.E. 1056

HALL

v.STERLING IRON & RAILWAY CO.

Court of Appeals of New York.

Feb. 18, 1896.

Appeal from supreme court, general term, Second department.

Action by Frank A. Hall against the Sterling Iron & Railway Company to restrain defendant from obstructing the outlet of a certain pond.From a judgment of the general term affirming a judgment for plaintiff(26 N. Y. Supp. 143), defendant appeals.Affirmed.

DEED-CONSTRUCTION-GRANT OF WATER RIGHT-EFFECT.

1.A deed of land on which were situated works operated by a water power obtained from a stream running through it, described the land, and granted it, ‘together with all and singular the devices, buildings, rights, members, privileges, advantages, hereditaments, and appurtenances to the same belonging or in any wise appertaining.’Held, that such deed passed a right to use a certain quantity of water from a designated pond for the purpose of carrying on such works, obtained by the grantors by grant from the proprietor of the pond and premises situated above such works on such stream.

DEED-CONSTRUCTION-GRANT OF WATER RIGHT-EFFECT.

2.A grant of right to use a certain quantity of water, from a designated pond or small lake, ‘for the purpose of carrying on’ certain works situated on a natural stream constituting the outlet of such pond, such right to cease when the grantor's furnace should be in operation, does not limit the use of the water to the particular works operated by the grantee at the time; but a person succeeding to the grantee's rights may use such quantity of water to operate different works.26 N. Y. Supp. 143, affirmed.

William B. Anderson, for appellant.

E. A. Brewster, for respondent.

HAIGHT, J.

This action was brought to restrain the defendant from placing obstructions in the outlet of Mt. Bashan pond in Orange county, or the stream of water leading therefrom, and from doing any act which shall diminish or interfere with the free flow of the water from the pond through its outlet.Mt. Bashan pond is a lake, about a square mile in extent, fed by springs and surface water.At the northeastern end of the lake is the outlet, from which runs a stream in a southerly direction.In the outlet of the lake there is a dam, with gates, by which the flow of the water can be accelerated or retarded, to suit the requirements of those entitled to the use of the water.About three miles below there is another pond of about 50 acres in extent known as the ‘Little Dam Pond.’From this pond there is a flume, through which water was conveyed to the Southfield furnace, now known as the ‘Sterling Furnace,’ and from thence by a tailrace to the original channel of the stream.A short distance below the furnace, and on the opposite side of the outlet, there was located a nail factory and a gristmill, operated under one management, and known as the ‘Monroe Works,’ which works were operated by the water flowing through the outlet.In 1811 one Peter Townsend was the owner of the Southfield furnace, together with the lands upon which it was located, including Mt. Bashan and Little Dam ponds, and one Henry McFarlan was the owner of the Monroe Works, together with the lands upon which they were located.On the 25th day of June of that year, Peter Townsend and wife, in consideration of the sum of five dollars, to them in hand paid, conveyed to Henry McFarlan‘all the right or privilege of using or drawing off the water from a certain pond called ‘Mt. Bashan Pond,’ situate in the town of Monroe, in the county of Orange, near a nail manufactory of the said Henry McFarlan and others, called the ‘Monroe Works,’ for the purpose of carrying on the said works, in such quantity as would be sufficient for carrying on and working the furnace, situate between said nail manufactory and the said pond, called ‘Southfield Furnace,’ occupied and owned by the said Peter Townsend and others, and for which purpose said water is now used, and no further or greater quantity: Provided, always, that the right so as aforesaid granted to the said Henry McFarlan, his heirs and assigns, of drawing off said water as aforesaid, shall cease at all times whenever said furnace, called the ‘Southfield Furnace,’ is in blast or making iron.'

The trial court has found, as facts, that the plaintiff is now seised in fee and possessed of the lands upon which the ‘Monroe Works,’ so called, were located; that he derived his title through sundry mesne conveyances from Henry McFarlan, after the conveyance to him by Peter Townsend, and that the water power granted by the Townsend deed has by such conveyance, and as an appurtenance to the land, become, and is now, vested in the plaintiff; that the outlet of Mt. Bashan pond is a natural stream of water passing through the plaintiff's lands, which furnishes the water power for the propelling of the machinery of his factory.The court further found that, in September, 1891, the defendant, by closing the gate in the dam upon the stream above the plaintiff's property, and by forbidding and preventing the plaintiff from opening the outlet of the lake, deprived the plaintiff of the water power to such an extent that, some portions of the year, he could run his machinery only about a quarter of the time; and, as a conclusion of law, the plaintiff was entitled to an injunction.It further appears that the nail factory was destroyed by fire in the vicinity of 50 years ago, and that the factory has never been rebuilt; that the gristmill was converted into a basket factory which afterwards gave place to a shoddy mill, and thence to a manufactory of wooden articles, which business is still conducted therein.

The first question presented for our consideration pertains to the plaintiff's ownership of the water right conveyed by Townsend to McFarlan.It appears that McFarlan and one Joseph Blackwell were copartners engaged in conducting the Monroe Works, and that the same was purchased with the money of the firm.The title, however, was taken in the name of McFarlan, and so remained at the time of his death.It further appears that his executors, pursuant to a power contained in the will, conveyed an undivided one-half of the premises to one Hudson McFarlan, and the other undivided one-half, including the water grant in question, to the seven children and heirs at law of Joseph Blackwell whose death had preceded that of McFarlan's, and that, subsequently, the seven Blackwell heirs conveyed to Hudson McFarlan, through whom the plaintiff acquired his title.The only question pertains to the conveyance by the executors of the undivided one-half to Hudson McFarlan.The deed describes the lands upon which the works were situated, and grants them, ‘together with all and singular the devices, buildings,...