Morehouse v. Woodruff

• Decision Date: 11 July 1916
• Citation: 218 N.Y. 494,113 N.E. 512
• Parties: MOREHOUSE et al. v. WOODRUFF et al.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 494

113 N.E. 512

MOREHOUSE et al.

v.WOODRUFF et al.

Court of Appeals of New York.

July 11, 1916.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by David P. Morehouse and Louise B. Macfarlane, as executors, and another, against Caroline B. Woodruff and others. Judgment for plaintiffs (164 App. Div. 966,149 N. Y. Supp. 1098), and defendants appeal. Reversed and dismissed.Elisha B. Powell, of Oswego, for appellants Cooper and Powell.

Frederick E. Storke, of Auburn, for appellants Beardsley executors.

Ernest B. Millard, of Rochester (D. P. Morehouse, of Oswego, of counsel), for respondents.

SEABURY, J.

This action is brought to enforce contribution from the defendants for money expended for repairs made upon a canal wall and in keeping said canal in a fit condition for use. The plaintiffs are the owners of the bed and banks of the Varick canal and certain water privileges appurtenant thereto, subject to certain leasehold interests granted by them and their predecessors in title. The defendants are the assignees of the leasehold interests and the right to collect the rents arising thereunder. The rights of the lessees under these leases are in no way involved, and the lessees are not parties to this action and are not now before the court.

The Varick canal is situated on the west side of the Oswego river, and runs along the west bank of said river parallel with the site for a state dam northerly a distance of about half a mile. The canal is entitled to half the water of the Oswego river after the state's needs for navigation have been supplied. The rights and obligations of the parties will be disclosed in tracing the title to the property in question. The canal was originally the property of Abraham Varick, from whom it derived its name. In 1834 Abraham Varick caused a map of the property to be made. This map is referred to the record as the McNair map. This map shows the land between the canal and the river divided into mill lots. Through certain mesne conveyances the canal became the property of Ann Varick. In 1846 Ann Varick conveyed the property to Frederick T. Carrington and Myron Pardee, as tenants in common, subject only to a lease, which is not involved in this action. The deed to Carrington and Pardee conveyed the property ‘as the same was granted and conveyed to Abraham Varick by the original letters patent, * * * with water rights, privileges, leases, etc., except as specifically excepted.’ There was no specific exception in the deed which affects in any way the rights of the parties to this action. Under and by virtue of this deed Carrington and Pardee became tenants in common of the property in question. Carrington and Pardee made a series of leases in fee of one or more mill lots, granting to the lessees a perpetual right to specified quantities of water measured by stone runs. These leases of mill lots all contained the following covenant:

‘And it is further agreed between the parties hereto, that the said parties of the first part, their heirs or assigns, shall not, in any wise, be answerable for any damages or loss that shall, in any manner, arise to the said parties of the second part, their successors, heirs or assigns, in consequence of or by reason of any breach in the said canal, wall, dam or works therewith connected. But the said parties of the first part, their heirs and assigns, shall repair any breach or injury to the said canal or wall that shall arise from any freshet or from natural wear and decay within a reasonable time after being notified thereof; but the said parties of the second part, their successors, heirs or assigns, agree to keep the canal and wall in repair, and the canal of its present depth and width, or such depth and width as the said canal shall hereafter be made by the said parties of the first part, their heirs or assigns, and keep the same free from grass, weeds and other obstructions on and opposite to the land hereinbefore demised.’

The court below held that under this covenant ‘the maintenance and upkeep of the canal was first cast upon the lessors with the obligations on the lessees by way of indemnity to make ordinary repairs to the canal wall and the flow of water in front of their respective properties.’ There is no dispute or difference of opinion as to the meaning of this covenant to repair, and the plaintiffs and defendants both accept as correct the interpretation which the learned court below placed upon it. In August, 1875, Carrington died, and subsequently the plaintiff Macfarlane represented the interest of Carrington in the property in question as executor and devisee. In May, 1877, Pardee commenced to sell his interest in the property. To accomplish this end he made sales to various persons. In making these sales he separated his interest, selling his interest in the leases and to the rents reserved to one set of purchasers and his reversionary interest, which has been referred to as the ‘power fee,’ to Macfarlane. The assignments of these leases which Pardee made were all similar to the assignment which he made to one Willard on May 16, 1877. The description of the interest which Pardee purported to transfer by means of these assignments is set forth in the following language:

‘Sold, assigned and conveyed, and doth hereby sell, assign, transfer and convey to said Willard, his heirs and assigns, an equal one-half share or interest of, in and to the aforesaid indenture or leases, and in and to the rents agreed to be paid in and by the same from and after the first day of May, 1877,’ etc.

In these assignments of the leases, Pardee expressly covenanted:

‘That there is no legal or equitable lien or claim of any kind upon the one-half part of said rents hereby sold and assigned to said Willard and that he has a perfect and legal right to make such assignment thereof.’

The legal effect of this so-called assignment of lease was to convey to Pardee's assignee the right to collect Pardee's share of the rent under the existing lease, and limiting the right of the assignee of the lease to collect rent only for the quantity of water power specified in the lease assigned. There is nothing in these assignments of lease to indicate that the assignee assumed the obligation of Pardee, the assignor, to make repairs. Having divested himself by means of these assignments of the right to collect rent under the leases, Pardee still retained his reversionary interest in the property. He was still the owner of an undivided one-half interest in the fee of the canal, which interest carried with it a right to the water privileges not specifically demised. As the owner of this reversionary interest Pardee was subject to the obligation to make repairs unless it can be held, as a matter of law, that the assignees of the leases assumed this obligation to make repairs. On November 29, 1884, Pardee and wife conveyed to Macfarlane his interest in the fee of the property in question, together with his interest ‘to the bed and banks of said canal and the water rights and privileges appertaining to the whole or any part of the above-described lots property except as herein excepted and excepting and reserving from this conveyance the leases in fee for water on said Varick canal heretofore granted and conveyed and subject to all the covenants given by said Pardee in leases heretofore granted by him for water in said canal.’ Under and by virtue of this deed Macfarlane became seized of the interests of Pardee in the premises in question, except the leases in fee for water power which Pardee had theretofore granted. This interest Macfarlane took according to the express conditions covenants given by said Pardee in leases heretofore granted by him for water in said canal.' One of the covenants herein especially referred to was the covenant to repair that is set forth above. It is clear, therefore, that by virtue of the conveyances referred to above the plaintiffs are seized in fee of the Varick canal subject: (1) To the leases made by Carrington and Pardee; and (2) to the right of the assignees of Pardee to collect Pardee's share of the rent reserved in the leases assigned by him. It remains to be determined whether the assignees of the leases who received the assignments from Pardee assumed the obligation to repair. If the assignees of those leases did not assume the obligation to repair,...