Pirman v. Confer
Decision Date | 16 March 1937 |
Citation | 7 N.E.2d 262,273 N.Y. 357 |
Parties | PIRMAN et al. v. CONFER et ux. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Ernest J. Pirman and another against Harold T. Confer and wife. From a judgment entered in the Warren county clerk's office and corresponding portions of an order of the Appellate Division (247 App.Div. 839, 286 N.Y.S. 457), on which such judgment was based, reversing in part and affirming in part a judgment of the Special Term, entered after trial by the court without a jury, both parties appeal.
Judgments of the Appellate Division and Special Term modified, and affirmed as modified. Appeal from Supreme Court, Appellate Division, Third department.
Joseph Rosch, of Albany, and John H. Barker, of Glens Falls, for plaintiffs, appellants, respondents.
John A. Slade, of Saratoga Springs, for defendants, respondents, appellants.
Both parties appeal to this court, each from a portion of a judgment of the Appellate Division, Third Department, which reversed in part and affirmed in part a judgment of the Supreme Court for Warren County. The Appellate Division set aside findings of fact made by the trial court and made new findings. It is the duty of this court to review the facts found by the courts below (York Mortgage Corp. v. Clotar Construction Corp., 254 N.Y. 128, 172 N.E. 265), and to determine where the weight of the evidence lies (McKee v. McKee, 267 N.Y. 96, 100, 195 N.E. 809).
The parties here are the same as those in Confer v. Pirman, 273 N.Y. 587, 7 N.E.(2d) 706, which was argued at the same time as this case, except that the position of the parties, as plaintiffs and defendants, is reversed. On October 23, 1850, Hougal Brown was the owner in fee of the southwest quarter of Great Lot 60 in Hyde township of the town of Warrensburg, Warren county, N. Y., in which is located Hutchins pond (now known as Forest lake), with the exception of a small portion of the lake which lies in the northwest quarter of Lot 60. In Confer v. Pirman, Confer and wife claimed to own the entire bed of Hutchins pond, and to have the right to the exclusive use of the waters thereof by virtue of a series of conveyances, all containing the same description, starting with a deed from Hougal Brown and wife to Linas Wells, dated March 24, 1858, and recorded May 17, 1858. By that deed, there was conveyed to Wells all of the southwest quarter of Great Lot 60 in Hyde township, Warren county, N. Y., excepting and reserving all that part thereof as was described in a deed from Hougal Brown and wife to Edmund Morehouse, duly recorded October 25, 1850, in Warren county clerk's office in Book T of Deeds at page 75. The deed from Brown and wife to Morehouse passed title to all of the southwest quarter of Great Lot 60 lying on the east side of Hutchins pond and its outlet. It was held by the courts below in Confer v. Pirman that the description in the deed from Brown to Morehouse carried title to the center line of the pond and outlet and that Confer's title, running back to the deed from Brown to Wells, lay west of the center line thereof. The decisions of the lower courts have been unanimously affirmed by us, without opinion, on the authority of White v. Knickerbocker Ice Co., 254 N.Y. 152, 172 N.E. 452, 74 A.L.R. 591. In the case at bar, plaintiffs seek an injunction restraining interference by defendants with the unrestricted use by the former of the lake lying east of the center line thereof and of all of the southwest quarter of Lot 60 lying east of the lake. The issue of plaintiffs' title has been here brought into question. The courts below have held that plaintiffs are the owners and entitled to the exclusive possession and use of all of the southerly half of Great Lot 60 lying east of the center line of the lake and southeast from the outlet to the lands adjoining.
In the case at bar, the trial court found, and its findings were not changed by the Appellate Division, that, in addition to the properties owned by the respective parties in Lot 60 above referred to, the plaintiffs are and have been since prior to January 1, 1934, the owners in fee and in possession of the northwest quarter of Great Lot 59, the northeast quarter of Great Lot 60, the north half of the northwest quarter of Lot 60, the southwest quarter of Great Lot 67 and the southeast quarter of Great Lot 67, containing about nine hundred acres, all in Hyde township, while the defendants owned and were in possession of the south one-half of the northwest quarter of Lot 60 and of that part of the southwest quarter of Lot 60 not owned by the plaintiffs; that during the spring of the year 1934, the plaintiffs, at a large expense, made improvements to their property of the character and to the end that it was and has since been used for the business of conducting a summer camp for girls; and that the defendants were using and occupying their premises as a camp for boys.
The evidence here satisfactorily establishes that defendant Harold T. Confer ordered plaintiffs' guests at their camp who were bathing in the lake to leave; that defendants have ridden on horseback over bridle paths on plaintiffs' property and taken their boy guests with them and thereby seriously interfered with such use of the bridle paths by the girl campers; that defendants have removed and destroyed and concealed signs on plaintiffs' property and have erected signs thereon and have cut and have otherwise injured trees. It is also undisputed that the defendants erected barriers in a roadway, the defendants claiming that the roadway in question was a private road and that the barriers were erected upon their property.
The question remaining to be settled is the character of the roadway and the right to its use, and upon a settlement of that question depends, to some extent, the right of defendants to erect the barriers in question. The trial court made findings of fact, numbered 5 to 23, inclusive, which had to do with the roadway in question and barriers thereon. In the conclusions of law 1 to 6, inclusive, the trial court held, among other things, that the roadway was a public highway on its easterly and westerly ends and that plaintiffs had acquired an easement in the parts connecting the east and west ends by prescription. The Appellate Division set these findings and conclusions of law aside and made four...
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