Nye v. Hoyle

• Decision Date: 15 April 1890
• Citation: 120 N.Y. 195,24 N.E. 1
• Parties: NYE et al. v. HOYLE et al.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 195

24 N.E. 1

NYE et al.

v.HOYLE et al.¹

Court of Appeals of New York,

Second Division.

April 15, 1890.

Appeal from a judgment of the general term of the supreme court in the third judicial department, affirming a judgment entered upon a decision of the court on trial at special term.

This was an action by one riparian owner against another to recover one-half the expense of rebuilding a dam that furnished water to both. On the 13th of May, 1835, one Noadiah Moore owned a water privilege on the Big Chazy river, near the village of Champlain, in the county of Clinton; and immediately below, on the same side of the river, was another water privilege, belonging to Pliny and Amasa C. Moore. Connected with each privilege were a dam, pond, mills, and land belonging to the respective proprietors. The two pieces of property were so situated with reference to a bend in the river that water could be taken from the dam of Noadiah Mooore at the upper end of the curve, and carred by a canal across his lands and the lands of Pliny and Amasa C. Moore to the lower end of the curve; and thus a greater fall or head of water could be secured than belonged to the proprietor of either privilege. In order to accomplish this object, the owners entered into a written agreement, under seal, dated May 13, 1835, whereby it was covenanted and agreed between Noadiah Moore, as party of the first part, and Pliny and Amasa C. Moore, as parties of the second part, and his and their heirs, executors, administrators, and assigns, that ‘a new mill and water privilege shall be, and by these presents is, made and created on the river Chazy below the present mills of P. and A. C. Moore opposite the little cove; * * * and the water is to be taken from the said mill-pond of the said party of the first part, through his present ditch or canal leading to his said mill, under the logway attached to said saw-mill, and through the lands to the said parties, as may be most convenient and useful, to the top of the bank opposite said cove; and so much of the said lands, dam, ditch, canal aforesaid, and the lands necessary for making, repairing, and maintaining the new ditch or canal, belonging to the parties of these presents, shall be attached to the mill and water privilege hereby created, and belong to the parties, as hereinafter mentioned. The dam of the party of the first part shall be kept and maintained tight and in good repair by the said party of the first part, and the ditch or canal leading to the said saw-mill is to be widened by the said party of the first part, (so as to command and take at a low time the water of the river in preference to any other outlet;) and the said ditch to be so widened and afterwards maintained, and the said dam to be maintained, repaired, and rebuilt, if necessary, at the sole expense of the party of the first part, his heirs and assigns.’ Then followed a provision that the new ditch, or extension of the canal, should be made through the lands of the parties, and maintained and kept in repair, at the sole expense of the second parties, their heirs and assigns. The first party has to have, own, and use freely and fully, subject to certain restrictions, one-third part of the water privilege thus created; while the second parties were to have, own, and use freely, and without any restriction, two-thirds of the same. It was further provided that the first party, his heirs and assigns, should ‘have, own, and use’ a piece of land, belonging to the second party, situate at the foot of the new canal, and comprising two and one-half acres; also that ‘one-third of the water running in said canal shall so, as aforesaid belong to the party of the first part, and two-thirds to the parties of the second part; and the old and former privileges of the respective parties shall be and remain and be used, occupied, and possessed and enjoyed, by the respective parties, as heretofore, except that the new privilege hereby created is always to have a preference of water when there is not enough for all; and the land, hereditaments, and appurtenances necessary for the creation and full enjoyment of the new privilege shall be owned, possessed, and enjoyed as hereinbefore particularly mentioned.’ The agreement, which contained many other provisions not deemed material, was duly acknowledged September 11, 1837, and on the same day recorded in the proper county clerk's office. The new water privilege thus created was soon put into actual operation, in the manner provided for by said agreement.

After work on the new privilege had been commenced, and on January 1, 1836, Noadiah Moore conveyed to Freeman and Bartlett Nye five acres of land west of and adjoining said mill-pond and old canal, upon which were certain mills and a part of the new canal, as well as a portion of the land overflowed by the dam in question, subject to all the conditions in the agreement of May 13, 1835, and subject, also, to the proviso that the grantees, ‘their heirs and assigness, shall be charged with one-half of the repairs of the dam, to keep up the same, and of enlarging the present ditch, as contemplated in the contract with Pliny and Amasa Moore relating to the new privilege, and as already begun.’ This conveyance covered the use of part of the water belonging to the old privilege of the grantor, and also one-half of his share of the water belonging to the new privilege. It was recorded February 18, 1836. August 28, 1851, Noadiah Moore conveyed to the same grantees an individual half of said two and one-half acres conveyed to him by the agreement of May 13, 1835, ‘subject to all the terms, conditions, provisions, restrictions, and reservations' contained in said agreement, and in said deed of January 1, 1836. This deed was recorded May 22, 1853. By these conveyances the grantees became tenants in common with Noadiah Moore of the old privilege, and of his interest in the new privilege. By the will of Noadiah Moore, admitted to probate April 11, 1859, all his water privileges, together with all the land, shops, and buildings connected therewith, were devised to Pliny N. and Samuel M. Moore. The interest of Pliny N. Moore in the new privilege passed under his will to one Pliny Moore and the defendant Timothy Hoyle, and his interest in the old privilege to said Pliny Moore, and through him, by an intermediate conveyance, to Freeman Nye. By sheriff's deed the interest of Samuel M. Moore in the new privilege was conveyed to said Pliny Moore and Timothy Hoyle, and his interest in the old privilege to Freeman Nye, who thus became the owner, with Bartlett Nye, of all the old privilege, dam, pond, and adjacent lands owned by Noadiah Moore on May 13, 1835. When this action was commenced, as the trial court found, the plaintiffs owned all ‘the rights, interest, and property’ acquired by Freeman and Bartlett Nye under the above conveyances; and at the same time the defendants owned all the ‘rights, interest, and property’ that Pliny and Amasa C. Moore possessed or acquired under the agreement of May 13, 1835, and of all the interest in the new privilege that was devised by Noadiah Moore to Samuel M. Moore and Pliny N. Moore. The old dam of Noadiah Moore was carried away...