Kleinberg v. Ratett
| Decision Date | 19 November 1929 |
| Citation | 169 N.E. 289,252 N.Y. 236 |
| Parties | KLEINBERG et al. v. RATETT. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Samuel Kleinberg and another against Morris Ratett. Judgment of the Special Term in favor of defendant directing specific performance of contract for sale of realty was reversed by the Appellate Division, and judgment directed for plaintiffs (225 App. Div. 208, 232 N. Y. S. 478), and defendant appeals.
Reversed, and complaint dismissed.
Appeal from Supreme Court, Appellate Division, Second department.
Charles W. Ticknor, of Mt. Kisco, for appellant.
A. W. Hendrickson, of Ossining, for respondent.
The plaintiffs and the defendant entered into a written contract whereby the former agreed to buy, and the latter agreed to sell, a plot of ground in the village of Mount Kisco, N. Y. The contract called for the delivery of a deed containing covenants, warranting the title to be free from all incumbrances, except the incumbrance of a specified mortgage. On the execution of the contract, the plaintiffs made a down payment of $2,000, in compliance with the contract terms. At the time of closing the plaintiffs refused to perform on the ground that a natural stream of water, or small brook, crossed the lot from south to north, encompassed in a 24-inch pipe laid 4 feet under ground. That such was the fact appears from the allegations of the complaint, which were admitted by the answer, and from the agreement of counsel made upon the trial. It further appears that, from a point one block south of the parcel sold, the brook is ‘a living stream of water which flows northerly through open fields,’ and is at all times visible; that, after crossing the parcel in question, it passes, in a culvert, under a village street; that, after leaving the culvert, it resumes its natural character and continues its flow to the north and west as an open stream visible to every passerby. It does not appear that the brook, as piped, pursues a course across the lot which is other than the course of its natural channel; that it has been lowered or lifted from its natural bed; that the owner of the lot has done other than to provide a conduit for the brook to pass through at the level and in the course of its natural flow. Furthermore, it does not appear that the pipe was laid pursuant to any agreement with the upper or lower owners, or that it has constituted an artificial conduit for the natural brook for a greater period than 20 years. It does not appear, therefore, that the riparian owners above or below have acquired any right, by grant or prescription, against the owner of the lot, to have the pipe maintained upon the premises to provide an artificial waterway. The plaintiffs alleged and proved that they were unaware of the existence of the brook when they executed the contract, and that the defendant was silent in regard thereto. The plaintiffs demanded judgment for the return of their down payment and for the rescission of the contract. The defendant by his answer prayed that the plaintiffs be required specifically to perform the contract. The Appellate Division directed judgment in favor of the plaintiffs for the amount of the down payment.
Superficial or subterranean water courses, not the subjects of grant or prescription, are not legal incumbrances, since nature itself, rather than man's contrivance, is responsible for their origin. True, the owner of land over or through which a natural stream flows may not divert or dam it back, to the injury of the upper or lower proprietor. The former possesses the natural right to have the stream discharge itself through its ancient channel, while it is the latter's right to have the stream come down to him in undiminished flow according to its established wont. In a sense these rights restrict and burden the use of the intermediate land. Nevertheless, since they are...
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...of law governing mistake as related to specific performance differ from those governing rescission for mistake (see Kleinberg v. Ratett, 252 N.Y. 236, 240, 169 N.E. 289), we conclude that on this record it was error for the Appellate Division to dismiss the complaint and thus, in effect, gr......
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