Tuscarora Club of Millbrook v. Brown
| Decision Date | 13 July 1915 |
| Citation | 109 N.E. 597,215 N.Y. 543 |
| Parties | TUSCARORA CLUB OF MILLBROOK, v. BROWN. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Action by the Tuscarora Club of Millbrook against William H. Brown. From a judgment of the Appellate Division (154 App.Div. 366, 139 N.Y. Supp. 766) affirming a judgment dismissing the complaint, plaintiff appeals. Judgment reversed.
The action was brought to secure an injunction restraining the defendant from trespassing upon the plaintiff's lands. The plaintiff is a corporation organized for the enforcement of the Game Law (Consol.Laws, c. 19), the propagation of game and fish, and the purchasing and holding of lands and waters for the purpose of hunting and fishing.
In April, 1901, the plaintiff purchased from the First National Bank of Rondout certain lands and premises in Delaware county, which included the land under the water of the Mill brook, where the trespass complained of was committed by the defendant. In 1883 these lands and premises were owned by the defendant, William H. Brown, who, in that year, conveyed the same to Sarah A. Brown, and on February 24, 1885, Sarah A. Brown conveyed the same to Margaret A. Carroll. The latter deed contained the following reservation: “Reserving the right to William H. Brown, Jr., to fish in the said Mill brook stream.” Subsequently and by several mesne conveyances the property passed into the ownership of the plaintiff's grantor, the First National Bank of Rondout, and so to the plaintiff. All the deeds in the chain of title from the deed of Sarah A. Brown down to the conveyance to the plaintiff were duly recorded, and in all of them there was inserted a clause recognizing the right of the defendant to fish in the Mill brook, either by expressly reserving the right or by referring to the prior deeds which contained the clause quoted.
The defendant proved that he was the son of Sarah A. Brown, and his conveyance of the lands and premises to her was intended to be, and was in fact, a mortgage to secure loans of money which his mother had made to him. Prior to February 24, 1885, the defendant had repaid to his mother all the money so loaned, and she made the conveyance of that date to Margaret A. Carroll by his (the defendant's) directions, and by his further directions the mother inserted in the deed the clause reserving the right- to fish in the Mill brook. The defendant has asserted and exercised the right to fish in the stream under the reservation in the deed referred to, and threatens to continue to fish at his pleasure. These facts appear in the findings, and so far the case has gone in the defendant's favor.
Charles H. Tuttle, of New York City, for appellant.
Andrew C. Fenton, of Margaretville, for respondent.
CUDDEBACK.
[1] Whether the provision in the deed from Sarah A. Brown to Margaret A. Carroll, reserving the right to the defendant William H. Brown to fish in the Mill brook stream be regarded as a reservation or as an exception makes no difference so far as this case is concerned. West Point Iron Co. v. Reymert, 45 N.Y. 703;Beardslee v. New Berlin L. & P. Co., 207 N.Y. 34, 100 N.E. 434. For whichever way viewed the clause in the deed was entirely ineffectual to convey any estate or interest whatsoever in the lands described to a stranger to the conveyance. Bridger v. Pierson, 45 N.Y. 601;Craig v. Wells, 11 N.Y. 315;Beardslee v. New Berlin L. & P. Co., supra.
[2] Because the defendant was a stranger to the conveyance the exception or reservation of his right to fish in the Mill brook stream did not justify his trespass upon the plaintiff's land. The defendant, in order to meet this objection to his case, undertook to show that he was not a stranger to the deed, but that he was, in fact, the grantor therein, and the reservation was to himself. He proved that his deed to his mother was a mortgage which he had paid off, and that under the well-settled rules of law he had become reinvested with the absolute title to the lands mortgaged. Shattuck v. Bascom, 105 N.Y. 39, 12 N.E. 283;Odell v. Montross, 68 N.Y. 499;Carr v. Carr, 52 N.Y. 251. The plaintiff insists that such proof on the part of the defendant...
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Peters v. Smolian, 2015-09264, Index No. 23606/14.
...quoting Matter of Estate of Thomson v. Wade, 69 N.Y.2d 570, 573–574, 516 N.Y.S.2d 614, 509 N.E.2d 309 ; see Tuscarora Club of Millbrook, N.Y. v. Brown, 215 N.Y. 543, 109 N.E. 597 ). Contrary to the plaintiffs' contention, a right of first refusal does not constitute a "reservation" falling ......
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