Leonard v. Spencer

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: EARL
• Citation: Leonard v. Spencer , 108 N.Y. 338, 15 N.E. 397 (N.Y. 1888)
• Decision Date: 10 February 1888
• Parties: LEONARD v. SPENCER et al.

108 N.Y. 338

15 N.E. 397

LEONARD

v.SPENCER et al.¹

Court of Appeals of New York.

February 10, 1888.

Appeal from general term, supreme court, Second department.

The action was brought to abate a mill-pond, on the ground that it was a nuisance, and injurious to the public health. An appeal was taken by the defendants, James E. Spencer and others, from a judgment rendered by the supreme court at general term, in the Second district, reversing the judgment of the special term, and directing an absolute judgment for the plaintiff.

Martin J. Keogh, for appellants.

W. H. Robertson, for respondent.

EARL, J.

Besides denying the allegations contained in the complaint, the answer of the defendants sets up but two defenses, one of which is that the mill-pond ‘has existed in the place where it now is for more than one hundred years, and during all the time of its said existence the plaintiff or his grantors have, with the exception of about a year or two last past, assented to and acquiesced in the maintenance of the said pond and the dam by which it was caused;’ and the other is that ‘on or about the 1st day of February, 1864, Jane Kirby and Leonard Kirby, being then the owners in fee of the lands now covered by said pond, and owned by the plaintiff, and also of the lands owned by the defendants James E. Spencer and John S. Spencer, and leased by them to the defendant the Spencer Optical Manufacturing Company, as set forth in the amended complaint, did execute and deliver, for a valuable consideration, to Catherine H. Halstead, wife of Isaac Halstead, and Patience Ann Halstead a deed and conveyance in writing, bearing date on that day, and afterwards, on the 17th day of February, 1864, recorded, etc., wherein and whereby the said Jane Kirby and Leonard Kirby granted and conveyed to the said Catherine H. Halstead and Patience Ann Halstead the said lands now owned by the said defendants James E. Spencer and John S. Spencer, and occupied by the defendant the Spencer Optical Manufacturing Company, which deed contained the following covenants with others, to-wit: ‘Also the right to the said party of the second part, her heirs and assigns forever, in common with Jane Kirby, her heirs and assigns forever, to the use of the waters of the large pond, known as the ‘Kirby Mill-Pond,’ with access at all times for both parties to the gates to turn the water on or off, the water to be used only during the regular working days, and in the regular house; that is, eleven hours during each day of twenty-four hours. And it is hereby expressly covenanted and agreed by and between the respective parties to these presents, and their heirs and assigns, respectively, that neither party to these presents hath or shall have, nor shall their heirs and assigns, respectively, have, any right to use the water in the said large pond when it falls below four feet from the top of the dam; but whenever the water shall be running over the said mill-dam, either party may use the water so long as it runs over the dam, for so many hours a day as they wish. It is also mutually agreed that the small pond near the dwelling-house of Cornelia Geer, formerly of Jane Kirby, is to be kept full of water; that the upper and lower dam shall be kept always in order, and the expense therefor shall be borne equally, one-half thereof by the said Jane Kirby, her heirs and assigns, and one-half thereof by the said party of the second part to these presents, her heirs and assigns.' That the plaintiff received, by mesne conveyances from the said Jane Kirby and Leonard Kirby, and now holds, title to and ownership of the lands covered by said Kirby's pond, now owned by him, subject, however, to all the covenants aforesaid, and to all the easements in and over the same in said deed conveyed to said Catherine H. Halstead and Patience A. Halstead, and that in the autumn of 1873 the said Catherine H. Halstead and Isaac Halstead, her husband, and the said Patience A. Halstead, conveyed by deed to the defendants James E. Spencer and John S. Spencer the lands now held and owned by them, as set forth in the amended complaint, with all the privileges, rights, estates, and easements in and to the lands now of the plaintiff, covered by said Kirby's pond, which were granted or conveyed to said Catherine H. Halstead and Patience A. Halstead by said Jane Kirby and Leonard Kirby, as aforesaid, and that the said defendants are now the rightful owners and holders thereof.' The trial judge found all the material facts alleged in the complaint as to the nuisance maintained by the defendants, and its effects, to be true. As to the acquiesence of the plaintiff, he found substantially as follows: That the pond is an ancient pond, and existed in substantially the same condition as it now is at the time when, and for a great many years before, the plaintiff became the owner of his dwelling-house, with notice of the rights and easements of the defendants and their grantors in, to, and over the pond, and the lands covered thereby; that in the year 1877, and several years after the plaintiff had owned and resided in his dwelling-house, the defendants James E. Spencer and John S. Spencer, being owners of the lands conveyed to them as alleged in their answer, built thereon, with the knowledge and acquiesence of the plaintiff, and without objection on his part, a large factory for the manufacture of optical instruments, which was operated and worked by the water drawn from the pond as a reservoir, under the terms and conditions of the covenants set out in the answer; that thereafter the factory was burned down, and another large factory, for the same purpose, and operated in the same way, was built by the defendants, at great expense, and with the full knowledge and acquiesence of the plaintiff, and without objection or complaint on his part; that the defendant the Spencer Optical Manufacturing...