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    Varick vs. Smith and The Attorney General,
    Where a patent from the state for lands adjoining a navigable river, above tide water, refers for the location of the lot to a map on file in the surveyor general’s office, upon which map the lot is laid down as bounded on the river generally, the patentee is entitled to hold to the middle of the stream; subject to the right of the public to navigate the river in such parts of it as are navigable. And subject to such right of the public, the patentee is entitled to the use of the water and water privileges naturally connected with the lot thus granted.
    Lots bounding upon a river above tide water, and immediately below a state dam erected for the use of a canal belonging to the state, were sold by the commissioners of the land office as water lots bounding upon the river generally; Held, that the purchaser of such water lots was entitled to the water privileges connected with such lots at the time of the sale, by the natural flow of the surplus water over the state dam, so far as such waters could be used, to the middle of the stream, without interfering with the public right of navigation; and that the state officers could not after-wards lease such surplus waters, and authorize the lessee to prevent them from flowing over the dam, to the injury of the water privileges connected with the water lots thus sold.

      April 19.
    This was an appeal by the defendants from a decree of the vice chancellor of the fifth circuit. The facts of the case as stated in the complainant’s bill are set out in the report of the decision of the chancellor upon the appeal from the order of the former vice chancellor overruling the demurrer of the defendant Smith. (5 Paige’s Rep. 137, S. C.) After the decision upon that appeal the defendants-answered the bill, denying the complainant’s title to the water privileges claimed by him below the state dam, and also denying that he had any right to, the lands in the bed of the Oswego river. A replication was filed to the answers, and the cause was heard upon pleadings and proofs. The vice chancellor decided that the complainant had established his title to the water privileges claimed by him, and to the lands on the west side of the river at and below the state dam to the middle of the stream. He therefore decreed the lease to be void, so far as it purported to-grant to the lessees or their assigns the right to draw from the state dam the, surplus waters not wanted for the canal, and thereby to prevent the same from flowing to the complainant’s mills and property below y and granted a perpetual injunction against using such surplus waters by taking the same from or through the state dam.
    The following opinion was delivered by the vice chancellor upon making the decree appealed from.
    G-ridley, Y. C. The report of this case, (5 Paige’s Rep. 138,) where it came before the chancellor upon an appeal from a decretal order of the late vice chancellor of this circuit, overruling a demurrer to the bill of complaint, contains a very full and accurate statement of the facts as they are set forth in the bill. The answers of the attorney general, and of the defendant Smith, and the proofs taken in the cause, have in some respects changed the facts assumed as true upon the demurrer; and those changes will be adverted to in the course of this opinion, whenever they become material to the decision of any of the points raised in the cause.
    The first question discussed by the respective counsel, and which I propose to consider, is whether the complainant in the character of riparian proprietor, is to be regarded as the owner of the bed of the Oswego river to the middle of the stream adjacent to his possessions described in the bill. This question was distinctly passed upon by the late vice chancellor, and by the chancellor upon the appeal; and as I had supposed, was put at rest by their decisions, so that it was no longer an open question before this tribunal. It is now, however, contended, that the decision of the court of errors, in the case of The Canal Appraisers v. The People, ex rel. Tibbits, (17 Wend. Rep. 571,) and certain remarks of the chancellor himself made in the course of his opinion in that case, and some new facts given in evidence by the defendants, have thrown doubt on this question and upon this point. The counsel for the defendants now insists, 1. That the complainant is restricted from all right to the bed of the stream by the wording of the grants under which he, and those from whom he derives title, claim. 2. That the Oswego river being a navigable river, its bed belongs to the people of the state.
    Upon the first of these propositions, there is no doubt but that the description in a deed of conveyance may be so worded as to exclude the right of the grantee from any portion of the bed of a stream. And the chancellor, while commenting upon cases thus circumstanced, in pronouncing his opinion in the case of The Canal Appraisers v. The People, (17 Wendell, 599,) remarks : u In many cases also, the grants upon the borders of navigable streams have been so limited as to confine the patentees to the bank of the stream, by the plain terms of the patent itself. Such is the case, as I understand the testimony of the late surveyor general, in relation to all the grants for military bounty lands which lie upon the borders of navigable rivers. He says, the patent itself only contains the number of the lot; but that the survey and field notes in his office contain a particular description of the boundaries; that where such lots are situated on the banks of navigable rivers, they are bounded on the banks of such rivers or streams, and run thence along the bank of such stream. This is a clear indication of the intention of such grantors that the patent should not include any part of the alveus of the stream, or of the islands therein.” It is true, that the premises of the complainant described in the bill, except the block purchased of the state, are a portion of lot No. 7 in Hannibal, granted to John Allen, by letters patent, bearing date the 7th day of July, 1790, as military bounty lands. An exemplification of the patent, and the map referred to in the description of the premises allotted, have been produced in evidence, in which the land granted is described as “ All that certain tract or lot of land situate, lying and being in the county of Montgomery, and in the township of Hannibal, known and distinguished on a map of said township, filed by our surveyor general in our secretary’s office agreeable to law, by lot No. 7, containing six hundred acres,” and upon the accompanying map, the lot No. 7 is laid down and delineated as lying adjacent and extending to the Oswego river; which, in the absence of any other evidence, must be taken as though the premises were described by words in the grant itself, as extending to, and bounded on the river. So far, therefore as the description in the original grant is material to be considered, it must be regarded as conveying, by the settled construction of the term used in the patent, the land under the water to the thread of the stream. But in some of the mesne conveyances under which the complainant holds, the description of the premises is a little varied. As to one piece, the boundary line is described as extending “ to the westerly bank of the Oswego river; then along said river and the bank thereof north, fifty-two degrees west three chains, thence along said river as aforesaid,” &c. In the description of the other piece the boundary line is stated to extend “ to the west bank of the Oswego river, at low water mark ; thence along the windings of said river at low water mark to the place of beginning.” It is said in Hatch v. Dwight, (17 Mass. Rep. 289,) that where land is bounded on the bank of a stream, such description excludes the bed of the stream. That remark, as applied to the facts of that case, was clearly founded in truth. The facts of the case were such, as to indicate with great certainty, that by the use of the phraseology employed the parties intended to exclude from the operation of the release the bed of the stream. But I do not think that this is the necessary construction of such descriptive words in a grant. The popular understanding of them would doubtless limit the grant to the land adjacent to the stream. And so would the popular understanding of a description which bounded the premises upon the margin of a stream, or on the stream itself; but the legal construction of such words contained in the description of premises in a grant, has by repeated adjudications been established otherwise. {See 6 Cowen, 518, and Mr. Cowen?s note to that case with the authorities therein cited.) The grantors, however, in the language employed to describe the complainant’s premises, as extracted from the mesne conveyances under which he holds, use the phrase bank of the river as* synonymous with the river itself, carrying the boundary line to the bank, and then along the C( river” and not along the “ bank of the river,” and to the west bank at low water mark and 11 thence along the windings of said river.” There is nothing, therefore, in the particular words employed to describe the extent of the complainant’s premises, which indicates an intention to restrict the boundaries of the grant, otherwise than if the premises had been bounded on the river, or on the margin of the river. Nor is there any fact disclosed by the evidence, showing the least reason for believing that the parties who employed the words of the description above cited, intended to secure to themselves the right to the bed of the stream : on the contrary they clearly intended to part with their whole interest. Such a state of facts, however, did appear in the case of Hatch v. Dwight, before cited, and without doubt had a controlling influence upon the decision of the court. The blocks described in the bill of complaint, are situated on lot No. 1, in Hannibal, which had been reserved by the state; and the title of the complainant to these blocks is derived from the state by purchase. These blocks are described in the certificate of sale in the patent subsequently granted to the complainant, as “ blocks number 78,90, 99 and 103, of the village of West Oswego, &c., as the same have been surveyed, and are designated on the map of said village, filed in the office of the secretary of our said state.” An exemplified copy of said map has been given in evidence which exhibits these blocks as adjoining the river ; which I consider as equivalent to a description which in terms should describe them as bounded upon the river. What then was the extent of the premises thus granted by the state 1 In the terms of sale, and in the terms employed in the patent, a phraseology has been adopted, which, as between private individuals, would convey an interest to the middle of the river. And is the doctrine to be tolerated which shall assign one construction to a contract between private citi.zens, and a different one between an individual and the government 1 Would not the adoption of such a rule of construction operate as a fraud upon a purchaser who should pay an enhanced price for land adjacent to a stream of water upon the faith of a contract, which, as between private individuals, would have given him valuable hydraulic privileges 1 It seems to me that but one answer can be given to these questions. I therefore cannot resist the conclusion, that there is nothing in the circumstances attending these grants from the state, and nothing in the words of description employed in such grants, or in the circumstances attending the mesne conveyances, which can properly restrict the riparian rights of the complainant, and prevent him from holding to the thread of the stream.
    The next question is, whether the Oswego river is a navigable river in such a sense as to prevent the application to it of the principle of riparian ownership; and whether there is evidence before the court, which shows an original and continued appropriation of the bed of the river to the public.
    In discussing this question it must be borne in mind, that the doctrine of riparian ownership does not give a right to the bed of the stream, and the use of the water incompatible with the superior rights of the public, for the purposes of navigation and commerce. It acknowledges the right of eminent domain existing in the government, and only insists that the riparian owner has such a qualified and subordinate right to the bed of the stream, and the water which flows over it, as is consistent with the conceded rights of the public. (See the 3 d chapter of the first part of Hale’s treatise JDe Jure Maris.)

    With this explanation of what is meant by the right of a riparian proprietor to the bed of a river capable of being used for the purpose of navigation, we are prepared to en-quire whether this doctrine is applicable to the Oswego river. It cannot be a controverted question, that at common law the Oswego river would be subject to this right. Lord Hale says : “ Fresh rivers of what kind soever, do of common right belong to the owner of the soil adjacent; so that the owners of the one side have of common right the property of the soil, and consequently the right of fishing usque ad filum aqua.” He elsewhere defines what is meant by navigable or public rivers in (he absolute sense of the term, and denominates only those such, which are arms of the sea where the sea flows and reflows. The distinction is also recognized and illustrated in Palmer v. J\/lul~ ligan, (3 Caines, 318, 319,) where many English authorities are collected, which show that the Wey,the Severn and the Thames, are subject to the right of riparian ownership, above the points where the tide ebbs and flows, though they are navigable by boats, See. and are subject to the servitude of the public for the purposes of navigation and commerce. In the case of Palmer v. Mulligan, this doctrine is applied to the Hudson river at Stillwater; which in the language of Ch. J. Kent, “ is a fresh river, not navigable in the common law sense of the term, for the tide does not ebb and flow at that place.”
    This doctrine has since been sanctioned and confirmed by repeated decisions in this state, and in most of the other states of the union, and applied to streams which were navigable for boats and rafts which had been declared to be public highways by statute. The doctrine thus established as an elementary principle of the common law, and thus sustained by an unbroken series of adjudications in England and this state, is still the law of the land, and has not been overthrown, as has been urged on the argument, by the decision of the court of errors, in the case of The Canal Appraisers v. The People., (17 Wend. 572.) It is true, the counsel in that case contended that this common law doctrine was not applicable at all in this state; and that if it were applicable to small streams that it was not to the large class of rivers. Nevertheless, the decision, as I shall have occasion to show hereafter, does not necessarily repudiate this doctrine, and of course leaves it as the authoritative rule of adjudication which it is the duty of all inferior tribunals to try.
    The next question is, whether the statutes of the state have changed the common law doctrine of riparian ownership in relation to the Oswego river. It is insisted by the defendants’ counsel, that the court of errors have decided that the various acts of the legislature in relation to the Mohawk river, and the repeated legislative assertions of ownership of the bed of that stream, are evidence, that the state was the owner of the bed of that river. And hence he argues, that the same kind of evidence being furnished, in this suit in regard to the Oswego river, calls for the application of the same principle to that stream. It is proper, therefore, to consider how far that case is binding as an authority. It is undoubtedly binding, not only as to the point actually decided in the case, but as to all the legal principles which are necessary grounds for that decision. In point of fact, a particular judgment of the supreme court was reversed ; and as we cannot know the reasons which influenced the votes of the majority of the court, further than as they are to be found in the views of the senators who pronounced opinions in favor of such reversal, we are naturally led to examine these opinions. Senators Beardsley and Tracy delivered the prevailing opinions. And in page 605, senator Beardsley maintained that the evidence in the case showed that the relator was entitled to only a certain portion of the damages to his waterfall, even on the principles assumed by the supreme court, in relation to the right of the relator as riparian owner, and that the judgment of the supreme court should be reversed for that reason alone. He next argues against the application of the doctrine in question to the Mohawk river, but adds that “ he has doubts of the correctness of the views which he had adopted. And on page 613, he disclaims any general application of that doctrine to other rivers, in the following words : “ Nor do I now, in any further remarks that I may make on that subject, intend to express an opinion that shall be considered binding in reference to other rivers, where grants have been made by the government, particularly since the revolution.” And again he says, “ I hold myself uncommitted should other cases arise in reference to other rivers.” So too, senator Tracy maintains, in page 624, that it is not necessary to discard the application of the common law doctrine of riparian ownership to the Mohawk river in order to warrant a reversal of the judgment of the supreme court. I apprehend, then, that in a case where the reversal of the judgment of the supreme court was placed on grounds entirely consistent with the long established principles of riparian ownership, by the only judges who expressed opinions upon the question, it would be unsafe to conclude that those who gave a silent vote for the reversal acted upon principles hostile to that doctrine. They may have done so or they may not. It is sufficient, that the adoption of such principles was not deemed necessary to a reversal, by the judges who advocated that decision.. If we reject this case as an authority controlling the decision of the case at bar, we are left to an unrestricted ex-animation of the grounds relied on to show an original appropriation of the bed of the Oswego river by the state. In support of this proposition the counsel refers to the act passed for establishing the land office and other purposes j (1 Ch'eenl. ed. Laws, p, 284 ;) which provided that the commissioners should be authorized to grant so much of the land under the navigable rivers as they should deem necessary to promote the commerce of the state, with the proviso that no such grant should be made to other than the owner of the adjacent lands.
    I cannot think that the legislature intended by this provision to declare that the doctrine of riparian ownership was inapplicable to rivers which were navigable in the most extended sense of the term. The common law interpretation of the term navigable had been long settled. It had received a construction by adjudication, and when applied to a river, it meant a river where the tide ebbed and flowed and by the principles of the common law the bed of such a stream belonged to the state. (3 Caines, 318.) The legislature then should be deemed to use the term in a legal sense when they are applying it to create or describe a legal right. In that sense the law would violate no existing principle of private right; whereas, by adopting the construction claimed by the defendant, it would seriously infringe the established common law rights of the citizen. It is also to he remembered, that this provision has existed since a very early period of the government; and it does not appear that, in the practical construction of it, the commissioners of the land office have ever conveyed any lands in the bed of any of the rivers of the state which were not navigable in the common law sense of the term. Again, the claim on the part of the state is wholly inconsistent with the doctrine advanced in the case of Palmer v. Mulligan, and several subsequent cases, wherein the doctrine of riparian ownership was held to apply to streams which were navigable in the same sense that the Oswego river is navigable.
    The defendant has given in evidence several patents of islands in the Seneca and Oswego rivers granted by the state; and has referred me to pages 359th and 360th of the 13th vol. of Wendell’s Reports, which, though not strictly evidence in the case, serve to show historically that the state authorities have granted other islands in the same streams. In my judgment the chancellor has satisfactorily answered the argument founded on such grants, in his learned opinion in the case of The Canal Appraisers v. The People, (17 Wend. 599, 600.) But it would seem to be enough that the most strenuous advocates for the right of the state to the bed of navigable streams, senators Beardley and Tracy, with this very evidence before them, took the precaution to repel by unequivocal language the application of the principle contended for in the case before cited, to any other river than the Mohawk; and expressly reserving their judgments as to all other cases. (17 Wend. Rep. 613.)
    On the other hand the patent to John Allen, and the patent to the complainant granting the blocks in West Oswego, convey the premises thus granted by such words of description as, by the established construction of such language in grants between private citizens, carry the title to the bed of the river. In addition to this the complainant has given in evidence an exemplified copy of letters patent to George Scriba of a large tract of land bordering upon the Oswego river, issued in 1794, in which the descriptive words are of similar import. Now when these patents were granted the state owned the lands adjacent, and by consequence the bed of the stream itself. The state officers advertise and sell these lands thus bordering on the stream of water, which lands are mainly valuable for hydraulic privileges, but nearly worthless provided these patents do not convey the land under the water and the use of the water flowing over it. The purchaser buys them with reference to the value of such hydraulic privileges. The proper agents of the state convey the premises by patent, which as to its form and requisites passes the supervision of the law-officer of the government; and which by settled legal construction conveys the bed of the stream, and the water flowing over it. Can it then be asserted, with any semblance of justice, that the state is not estopped from claiming the bed of the stream thus conveyed 1 Can the state convey valuable hydraulic privileges by words which under the law of the state have received a settled interpretation, and then claim an exemption from the legal effect of such construction 'l Is not a contract between the government and an individual to be construed by the same rules as a contract between private citizens % Would not a departure from the settled construction of the words of a grant, when the state happens to be grantor, operate as a fraud upon a purchaser who made the contract with reference to its ordinary interpretation, and who paid his money relying on the soundness of his contract and the good faith of the government "2 It seems to me, that, according to all just principles, whether of morals or of law, the government is bound by its contract according to its settled legal interpretation; and that the state, by the terms of its own grant is estopped from denying the complainant’s title to the bed of the Oswego river, and to the use of the water flowing over it, adjacent to the premises described in the bill of complainant.
    In the language of the court in the case Ex parte Jennings, (6 Cowen, 528,) “ If the state had intended to retain" the property in the stream, they should have inserted an express reservation or exception in their grant.” The way is now prepared for the inquiry how far the rights of the complainant as riparian proprietor, and of those under whom he claims, have been affected by the erection of the state dam in the Oswego river. It appears by the evidence that in 1824 or 1825, the canal commissioners caused the state dam to be erected, across the Oswego river, for the purpose of raising a supply of water for the Oswego canal, constructed on the east side of that river ; that a body of water is elevated some 10 or 12 feet high by this dam, and that a large surplus of water passes over the dam, which of course is not necessary and cannot be used for the supply of the canal. The complainant owns the land both above and below the dam, and opposite to the dam where it is connected with the west bank of the river. At the time when the state dam was erected, the blocks described in the bill belonged to the state ; the piece of land first described in the bill was then owned by the heirs of Daniel Burt, and was valuable for its hydraulic privileges ; and the piece secondly above described then belonged to James Burt, and was not valuable for such privileges.
    The defendant’s counsel insist, that all the land covered by the dam and by the water therein, and the land upon which the water falls, must be regarded as having been appropriated by and as now belonging to the state; and that as the complainant purchased after the erection of the dam, he never obtained any interest in the land so appropriated. This proposition involves a most important and interesting question in relation to the relative rights of the state and private citizens. It is an incontrovertible proposition, that the government has no power to take the private property of a citizen, except for public use. Such was the doctrine of the civil law, and such has ever been held to be the doctrine of the common law, both in England and in this state. (See 2 Kent’s Com. 339, 340 ; 2 John. Ch. 11.166, 167; 1 Black. Com. 138, 139 ; 3 Dali. Rep. 191, 235 ; 3 Story’s Com. on the Const. 661.) The constitutions of the United States and of this state have placed a further safeguard around the principle of private right, and have provided that private property shall not be taken for public use without just compensation. No statute law, therefore, which clothes the agents of the state with powers inconsistent with these great constitutional principles, is valid ; and no act of the canal commissioners, in conflict with these principles, whether sanctioned by an act of the legislature or not, has any binding- force. The powers of the commissioners, as to the appropriation of land and property in the construction of the Oswego canal, were the same with those conferred by the act,, entitled “ An act respecting navigable communications between the great western and northern lakes and the Atlantic ocean. (Laws of 1817, p. 300.) By the third section of that act, the commissioners were authorized ££ to enter upon, take possession of and use all and singular any lands, waters and streams necessary for the prosecution of the improvements intended by the act,” &c. and to make all such canals, feeders, dykes, locks, dams and other works and devices as they might think proper for making said improvements, doing nevertheless no unnecessary damage. What then, under the provisions of this act, in the case under consideration, was taken and appropriated to the public use 1 Clearly all the land and water which were necessary for the improvement which the commissioners were then prosecuting. In other words, they took all the land and water necessary for the furnishing of an adequate supply of water for the Oswego canal. Was the water accumulated in that dam, from the moment it passed over the top of the dam and in its descent to the bed of the stream below the dam, necessary for the supply of the Oswego canal 1 On the contrary, the moment it commenced its descent it was incapable of beng appropriated to that purpose, and it had ceased to be consecrated to the public use. It had become physically impossible to appropriate it to such use. The public property in it had ceased to exist; and in my judgment, the right of the riparian owner, which had been suspended, revived and reattached to it in full force, subject to no restriction, except that servitude to public interest, for the general purposes of navigation, which existed before the erection of the dam. It was necessary, for the purpose of divesting a portion of the waters of the Oswego river to the Oswego canal, to raise a large accumulation of water in the dam, and much more than could be diverted for the use of the canal. And as this dam was erected by the state, it became public property, so that no person possessed the right of drawing off any portion of the accumulated water, through the dam itself, by inserting a flume and gate in it; for that would involve a trespass upon the property of the state. This consideration, however, does not affect the right of the riparian owner to the -water after its escape over the dam. That depends solely on the right of the state to appropriate the property of a citizen to any other purpose than public use. That is a right which does not exist, and cannot lawfully be enforced either with or without a provision for compensation. The government has the power, under the constitution, to appropriate the private property of its citizens, just so far and no farther than is necessary for the purpose and object of the appropriation ; and that may be an absolute and exclusive right to land or water, or it may be a partial or common or usufructuary right, according to the nature of the property and the circumstances of the case. But when such purpose is accomplished, the right of the state is exhausted, and the whole of the residue of the property, whatever it may be, belongs to the citizen. In this particular case, the state has the absolute and exclusive right to the land on which the dam is built, and to the dam itself. It has also an absolute and exclusive right to so much water as is necessary to be diverted for the supply of the Oswego canal, and by necessary consequence it has a temporary and usufructuary right to all the water in the dam, as a means of keeping an adequate supply for actual diversion. And it has a partial right to the land on wrhich the water flows ; that is, a right to have the water fall upon it. The state, therefore, may lawfully appropriate the property of the individual owner to this extent, by making proper provision for compensation for the damages sustained. Beyond this, I apprehend the power of the government does not extend ; and all right to the property, or to the use of it, which is not thus appropriated, may be enjoyed by the original owner of it or by his grantees. Of course, the complainant in this cause has a right, notwithstanding the objections arising from the alleged appropriation by the state, to use the water in its descent from the dam, and to use his hydraulic privileges below the dam, although he may raise the water at the foot of the dam, provided he does not injure the dam erected for public use.

      The question now arises whether the lease of the surplus waters, set out in the bill as being held by the defendant Smith, is in conflict with the right of the complainant as above declared. This must depend on the true construction of that instrument. By it, the canal commissioners assumed to grant and lease to the original lessee, all the surplus waters which, without injury to the navigation or security of the canal, might be spared from the Oswego canal, to be taken and drawn from the west wing of the first dam above Oswego, including one half of the surplus waters on said dam, in such place and in such manner as the said canal commissioners should from time to time deem meet and advisable for the security of the canal, and for the convenience of the navigation thereof.
    If the principles which have been already advanced are well founded, then the person owning the land adjacent to the state dam at the time of the execution of the lease was then entitled, and the complainant having succeeded to his rights, is now entitled, to have the surplus waters flow oyer the state dam, and to use them in their descent to the bed of the stréam, if he can do so without injury to the navigation of the river. This right is utterly inconsistent with the right granted by the very terms of the lease. By these terms the lessees are authorized to draw off all the surplus waters on the west wing of the dam. These waters cannot be taken and drawn from the west wing of the dam without destroying the complainant’s right to them in their descent over the dam ; and in granting this lease, my opinion is that the canal commissioners exceeded their authority. It will be perceived that the ground on which I have placed this decision will render it unnecessary to examine several questions, which were discussed by the counsel, relating to the complainant’s alleged rights under certain statutes, providing for the disposing of the right to use the surplus waters, to those who had before the erection of the the state dam possessed hydraulic privileges theretofore used, and also to persons owning the land adjoining any dams that might be erected. It will also be seen that I have assumed that the complainant must so use this surplus water as not to injure the owners on the east side of the river (though it is shown that one of the wing dams did so) and without creating a public nuisance in the river. But it is proper to add, that whether that be so or not, is not an inquiry which can be drawn in question in this collateral way. (3 Caines’ Rep. 315. 7 Cowen, 266.) If the
    above opinion is a correct exposition of the rights of these parties, it gives the complainant the right to valuable hydraulic privileges, adjacent to his premises adjoining the Oswego river, which would otherwise be comparatively useless; and it will readily be seen therefore, that this lease, which by its very terms destroys the complainant’s right to these privileges, constitutes what the law denominates a cloud upon his title to them. Although the lease is invalid, it nevertheless brings the complainant’s right to these privileges doubly in dispute, and essentially impairs the value of his property in them. It is obvious that purchasers would be far less likely to purchase mill sites of the complainant, with this cloud hanging over the right to use the waters in their descent from the dam ; and especially under a pending notice from the defendant, that he shall, under the right conferred by this lease, claim an accounting and reimbursement for the use of such waters. It is unnecessary to cite cases to show that this is a proper and fit case for the exercise of the jurisdiction of the court" of chancery. The decree will therefore declare the rights of the complainant in accordance with the principles above advanced, and will declare the lease void so far as it assumes to convey the right to draw the surplus waters from the dam, thus preventing or diverting them from their descent to the stream below ; and it will also enjoin the defendant from thus drawing or diverting said waters.
    This, however, is not a case where costs should be awarded against the defendant Smith. He has merely asserted a right under a lease executed by the agents of the state, under a belief entertained in good faith that such lease was valid. The original lessees paid the state a valuable consideration for the privileges granted by the lease, and the defendant Smith has paid a fair consideration for the assignment of it to himself. Under such a state of facts, it would be a severe exercise of the discretion vested in the court in relation to the subject of costs, to award them against a bona fide purchaser of rights granted by the state, under the sanction of its officers who believed they were acting under the authority of the law.

      D. Cady & The Attorney General, for the appellants.
    The respondent does not now and never has owned the bed of the Oswego river on which the west half of the state dam mentioned in the bill was built. The Oswego river is not mentioned in the patent. The lot is granted as described or distinguished on a map of said township filed by the surveyor general in the secretary’s office according to law. The map excludes the river as effectually as any words in the grant could do. If the Oswego river and its bed be regarded as having been private property at the time the state dam was erected, the land on which the dam stands and upon which the water falls from the dam, must be deemed to have been appropriated by, and as now belonging to the state in fee, and as the complainant purchased after such appropriation was made he never has had any interest or estate in the land so appropriated. The Oswego river is a navigable river and the commissioners of the canal office had no power to grant its bed except in the manner provided for by law. (1 Greenl. Laws N. Y., 284, ch. 37, § 18. 1 R. L. of 1802, p. 293, § 11. Idem of 1813, p. 293, § 1.) By the statute laws of 1819, (ch. 199, § 1,) the power is extended to land under the water of navigable lakes. To show that the legislature have regarded the Oswego as a navigable river, see Laws of 1820, p. 105, ch. 117, § 7; Idem of 1824, p. 279, ch. 342, §§ 1, 2 ; Idem of 1812, p. 442, § 6. The lease is a valid contract, and if it be not the respondent has no such interest in the surplus water mentioned in the lease as entitled him to file a bill in this court to- set aside the lease. If the lease be set aside there is no statute which will entitle the respondent to the use of the surplus water. The respondent cannot have the right to intercept the water in its descent from the dam because it is then over the land belonging to the state and must be the property of the state. The respondent cannot use the water in its descent from the dam for any hydraulic purpose, unless he builds mills immediately below the dam upon the bed of the river, and this he cannot do, without an act of the legislature authorizing it to be done, because the Oswego river is a public highway. Although the principal object in building dams across the Oswego river, was to improve the navigation of that river, yet the legislature, when water is raised in a dam belonging to the state, have the same right to control its use as well for hydraulic purposes as for the purposes of navigation. And the legislature have the same constitutional power to cause dams to be erected across large streams of water for the purpose of creating hydraulic privileges, as for the purpose of navigation. Should a dam erected for the sole purpose of creating hydraulic privileges, very much improve the navigation above the dam, the legislature would have a right to compel any person to pay toll who should use the same for the purpose of navigation.
    The decree in effect although not in terms establishes the respondent’s title to the bed of the Oswego river notwithstanding that river is a public highway, and the respondent’s right and title has not been established at law. Mitf. Pl. 129, 147, 148.)

      J. A. Spencer fy C. A. Mann, for the respondent.
    Grants of land bounded on rivers and streams above tide water (and of course upon the Oswego river,) extend to the centre or thread of the stream. The terms of the several grants set forth in the bill of complaint are such as to bound the land of the complainant upon the margin of the river, and therefore upon the principle last stated to extend his title to the centre of the river. The act of 1798, declaring the Oswego river a public highway does not impair the complainant’s individual rights, but only renders them subject to an easement in favor of the public for the purposes of navigation. The lease of which the defendant is assignee is void, because its effect is to take the property of one citizen and transfer it to another, which can be done neither with or without compensation. The complainant’s right is sufficiently clear to entitle him to relief without a trial at law. By the law of this state, as it always has been and yet is, the complainant, as riparian owner is seized of the bed of the Oswego, river and of a right to the use of the water to the centre of the river opposite to his land described in the bill. The canal commissioners in the prosecution of the improvements of the Oswego river were authorized to take for the use of the public only such lands and water as were necessary for the purposes of navigation, and the surplus remains to the original owner to be used in any manner not inconsistent with the public rights of navigation. The canal commissioners had not by law, any right to put the complainant, or those under whom he claims, in such a situation as to deprive them of the power to avail themselves of the benefit of the provisions of the act entitled, “ An act for the relief of the owners of hydraulic privileges in cases where dams are erected by canal commissioners,” passed April 5, 1823, (Laws of 1823, p. 132,) but the lease in question, if valid, would have the effect so to deprive them, and it is for that reason void. The lease in question was issued contrary to the provisions of the statute, authorizing the leasing of surplus waters. The west half of the Oswego river not constituting any part of the Oswego canal, the canal commissioners possessed no power under tne statute, to lease the water mentioned in the bill, and the lease for this reason is void. Whenever the canal commissioners construct a dam across a river to divert a portion of the stream for the purpose of the public use, they do not thereby acquire a title to the whole water of the stream : but if in so erecting a dam they improve the hydraulic power of an individual, that individual is entitled to use the same in its improved state in any manner not inconsistent with public navigation and without rendering any compensation therefor to the state. .
   The Chancellor.

This court having, in a former stage of the suit, determined that the bill in this case was properly filed if the facts stated therein were true, the complainant was entitled to a decree protecting his right to the water privileges claimed by him, and to the use of the waters which would naturally flow over the state dam on the west side of the river, which were not wanted for the use of the canal, if he succeeded in showing a title to the alveus or bed of the stream on that side; subject to the public right of navigation, so far as it is navigable. And without taking time to follow the vice chancellor in his able and elaborate opinion upon the question of title, I concur in the conclusion at which he arrived, that the complainant succeeded in establishing his title, substantially as stated in his bill.

The patent from the state for lot No. seven, under which the complainant has derived his title to the lands adjoining the dam and for some distance below the same, by legal construction conveys the alveus or bed of the river to the centre of the stream, where it meets the lands granted by the S crib a patent on the east side of the river. The patent for No. 7 refers for its location to the map of the township of Hannibal filed in the surveyor general’s office. And upon that map the lot is bounded generally on the Oswego or Onondaga river on the east. It is the same, therefore, as if the patent had in terms bounded the lands granted by the river, without restriction or limitation ; which would legally have carried the grant to the centre of the stream, subject to the right of the public to navigate the stream in those parts thereof, if any, in which it was navigable. The patent from the state to Yarick, for blocks 78, 90, 99 and 103 in West Oswego, also refers in the same manner to a map filed in the office of the secretary of state ; which map bounds these blocks on the river without restriction. And the complainant under that grant was therefore entitled to the water and water privileges which were naturally connected with those water lots. It may also be proper to observe that by the surveyor general’s certificate, it appears that these blocks were sold to Yarick & Turrill in July, 1827, and that the sale of the surplus waters in the dam did not take place until the next month. If the waters which were not wanted for the use of the public, and which naturally flowed over the dam and down the original channel of the river, therefore, were of any benefit to the owner of these water lots, or could be used by such owner without interfering with the public right of navigation, the complainant obtained the prior right by virtue of such purchase. For these reasons, and those which were given when the case was before me upon demurrer, I think the decree appealed from, so far as respects the rights of the complainant, was not erroneous j and the same must be affirmed with costs.

But upon the argument, the attorney general and the counsel for Mr. Smith, consented that the decree should be so modified as to be without prejudice to the right of the state and of Smith, as between themselves. It must therefore be modified accordingly in that respect. The decree upon this appeal to be entered as of the 6th of February, 1840, nunc pro tunc.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Pentz and others vs. The Receivers of the Ætna Fire Insurance Company.
    Where property in the city of New-York, which was insured, was destroyed by order of the mayor and aldermen to prevent the spreading of the fire, and the assured afterwards obtained an assessment of his damages for the destruction of his property, by a jury, in conformity to the statute; Held, that such assessment was not evidence, as between the assured and the underwriters, of the amount of the loss; and that the assured was entitled to recover of the insurers the whole amount of his loss in consequence of the fire, after deducting therefrom the net proceeds of what had been recovered from the corporation of the city; provided such balance did not exceed the sum for which the insurers were liable under the policy.
    Upon an assessment of damages for property destroyed by order of the mayor or aldermen of the city of New-York to prevent the spreading of a fire, the amount for which the city corporation is responsible is not the whole value of the property destroyed, but only so much thereof as would probably have been saved if the order to destroy the property had not been given. But as between the assured and the insurers the liability of the latter is more extensive, as it embraces the property which would have been burned if it had not been otherwise destroyed.
    April 19.
    This was an appeal from a decision of the vice chancellor of the first circuit. The appellants presented a petition to the vice chancellor stating that they insured in the office of The iEtna Fire Insurance Company, in 1835, $12,000 upon their two stores and $10,000 on the goods therein j that the stores and goods were destroyed by the great fire in New-York, in December of that year, by which they sustained a loss upon the store houses of $30,347,99, and upon the goods therein of $18,537,82 ; that the stores having been blown up by order of the mayor, a jury was empanelled to assess the damages occasioned thereby, and the jury assessed the damage, occasioned by the blowing up of the buildings, with the goods therein, at $39,476,54, including the interest to the 3d of May, 1838, which assessment was then in litigation before the supreme court j leaving a large balance still due from the insurance company, if the amount of such assessment should be actually recovered ; that the insurance company became insolvent by reason of that fire, and that the receivers who had been appointed under the act of February, 1836, had refused to adjust the claim of the petitioners or to submit the same to a reference. The petitioners, therefore, prayed that the receivers might be directed to adjust their claim and pay them their rateable proportion of the assets of the insurance company, or to submit their claim to referees as directed by the statute. Upon the hearing of the parties the vice chancellor decided that the receivers must either adjust the amount of the losses of the petitioners, and after deducting the amount which had been assessed in their favor against the corporation of New-York must admit them to stand as creditors for the balance, and pay their dividends thereon, or must offer to submit the matter to a reference, as directed by the statute, and take the proper steps to have the referees appointed. And an order to that effect was entered. The receivers not consenting to adjust the claim, referees were appointed accordingly. The referees, upon hearing the proofs and allegations of the parties, decided and reported that the petitioners had sustained a loss to the ^ A full amount of their policies, $22,000, which became due and payable on the 25th of May, 1836. And that there was due, including interest thereon to the date of their report, in August, 1839, $25,945. An application having been made to confirm the report, the vice chancellor held that the verdict of the jury, upon the assessment against the corporation, was conclusive as to the amount of the loss sustained by the petitioners ; as the court must presume the jury did their duty and allowed the whole amount of the loss proved before them. He, therefore, denied the application. (See 3 Edw. Ch. Rep. 341.) From that decision the petitioners appealed. At the time of hearing the appeal the question as to the liability of the corporation, for the amount of the assessment, was still pending and undetermined in the court for the correction of errors. But it was afterwards decided in favor of the petitioners. (See Mayor, fyc. of Mew- York v. Penfe, 24 Wend. Rep. 668.)
    D. Lord,jun., for the appellants.

      J. W. Gerard, for the respondents.
   The Chancellor.

I think the vice chancellor erred in supposing the verdict of the jury upon the assessment was conclusive evidence, between these parties, as to the actual amount of the loss which the petitioners had sustained. As between the petitioners and the city corporation it was conclusive. And as the insurance company could have no claim against the city of New-York except through the petitioners, and as being subrogated to their rights, it would be conclusive as between the corporation and that company. But the decision of the supreme court in the case of The City Fire Insurance Co. v. Corlies, (21 Wend. Rep. 367,) shows that the insurers were liable to the assured to the extent of their policies, notwithstanding the blowing up of the buildings. The application for an assessment against the corporation was, therefore, for the benefit of the insurers to the extent of the insurance, and for the benefit of the petitioners for the residue of the loss. And if the jury, without any fault on the part of the assured, should refuse to give the whole amount of the loss, either because they thought some part of the property would undoubtedly have been destroyed by the fire if the buildings had not been blown up, or for any other cause, there is no principle which can make that decision conclusive as to the actual extent of the loss as between the insurer and the assured. The fact that a part of the property would unquestionably have been lost by the fire if the buildings had not been blown up, would be a good reason for not including that amount in the assessment against the city. But it would be no reason for excusing the insurers from bearing their proportion of that loss which was covered by the policy.

Again i the proceedings against the corporation being for the benefit of the insurers as well as of the assured, the latter were entitled to a deduction from the amount recovered from the city corporation on account of the necessary costs and expenses of litigating that assessment through all the courts; and the loss of interest, if any, which had been sustained without any fault on the part of the petitioners.

The claim against the underwriters must therefore be adjusted by ascertaining the whole extent of the loss, at the cash value of the buildings and goods at the time of the destruction thereof, including the interest thereon until the time when the money was recovered under the assessment, and then deducting therefrom the amount received as the proceeds of the assessment; and charging the insurers with a proportionate share of the costs and counsel fees of that litigation in proportion to the benefit it was to them in limiting their liability under the policies. But in such a manner as in no event to charge the insurers with more than the amount of the two policies, and the interest thereon from the 25th of May, 1836; when the amount of the loss became due and payable by the underwriters. If the receivers and petitioners cannot agree upon an adjustment upon these principles, the referees must review their report and ascertain the amount due, and report the same to the vice chancellor ; to the end that a proper order may be made thereon for the payment of the distributive share of the petitioners out of the funds in the hands of the receivers. No costs are allowed to either party on this appeal ; and the proceedings are to be remitted to the vice chancellor.


text:
    Caldwell vs. The Mayor, &c. of the City of Albany.
    Where the lime for appealing depends apon a rule of the appellate court, such court, upon a sufficient excuse shown, may suspend its rule and allow an appeal, although sueh appeal was not brought within the time prescribed by the rule for appealing.
    But where the time for appealing is fixed by statute, and the appeal is not brought within such time, the court is not authorized to extend the time, even npon a good excuse shown ; as the lapse of time is an absolute bar to the appeal. Nor is the court whose order or decree is sought to be appealed from, authorized to extend the time for appealing indirectly, by vacating its order or decree after the time for appealing has expired and entering it anew as of a subsequent day.
    May 3.
    This was an appeal by the defendants from a decision of the vice chancellor of the third circuit, refusing to open the decree which had been made and entered in this cause in September, 1839. The object of opening the decree was to have it re-entered as of the present time, to enable the defendants to appeal from such decree; the time for appealing having expired. The affidavits on the part of the corporation stated that it was the intention to appeal from the decree, and that the defendant’s solicitor prepared the usual appeal bond and other papers for an appeal, about three months after the decree was entered. But the solicitor stated that being in the office of the solicitor of the complainant, the latter agreed to waive the execution of an appeal bond, and to consider the appeal as duly made and noticed for the next term of the chancellor. Mr. King, the complainant’s solicitor, having died very suddenly, in June, 1841, before the cause was heard before the chancellor, and the solicitor who was substituted in his place finding nothing in Mr. King’s register respecting the alleged agreement, nor any thing to show that he considered the decree as having been appealed from, refused to sanction the alleged agreement; acting under the instructions of his client, who swore that Mr. King told him, previous to his death, that the time for the defendant to appeal from the decree had expired.

      S. Stevens, for the appellant.

      J. Edwards cf J. V. L. Pruyn, for the respondent.
   The Chancellor.

There has evidently been some misunderstanding as to the supposed agreement between the late Mr. King and the defendant’s solicitor, which it is difficult to reconcile. The defendant’s solicitor swears positively to an agreement, not only to waive the giving of a bond but to consider the appeal as duly made and noticed for the January term, 1840. And the affidavit of the counsel for the corporation, who was employed to argue the appeal, corroborates this understanding of the agreement by the appellant’s solicitor. The affidavits on the other side, as to the declarations of Mr. King in his lifetime, and the wrant of any entry in his register, in which he was in the habit of making minute entries of all proceedings in causes in which he was solicitor, show that he could not have considered himself as having made an agreement to waive notice that an appeal had been entered, as well as the execution of an appeal bond with sureties. The probability therefore is, that Mr. King only intended to waive the usual security upon the appeal, and took it for granted that the requisite notice of appeal would be filed with the clerk, and served upon him, within the time allowed by law f°r appealing; but that the solicitor for the defendant underst0°d him as agreeing to waive the entry of an appeal in any form.

There is no doubt in my mind that the defendant’s solicitor meant to appeal, in good faith, and that he suffered the time allowed by law for appealing to expire, under the supposition that he had made a verbal agreement with Mr. King, on which he might safely rely, to waive all forms. It is of no consequence, however, except so far as the declarations of Mr. King are concerned, whether both parties understood the verbal agreement alike. For by the provisions of the 121st rule of the court, such an agreement would not have been binding upon either party, even if both solicitors had understood it in the same way. The only question therefore is, whether the vice chancellor had any authority to vacate the decree, after the time for appealing had expired, for the purpose of giving the defendant a further time for appealing, upon an excuse shown why the appeal was not entered within the time allowed by law for that purpose. (2 R. S. 178.) In the case of Smith v. Smith & Clark, (1 Paige’s Rep. 391,) it was held that where the time for appealing depended upon a rule of the appellate court, such court, upon a sufficient excuse shown, might suspend the operation of its rule and give the appellant relief, although his appeal had not been brought within the time allowed by the rule for appealing. And such, according to Urquhart, is the practice of the house of lords in England. (See Urqu. Exper. Solic. 19.) But where the time for appealing is fixed by statute, if the appeal is not brought within the time allowed by law the court cannot extend the time, even upon an excuse shown; as the lapse of time in that case is an absolute bar to the appeal. (See Gregory v. Bray, Mart. N. C. Rep. 39; Gregory v. Burnet and wife, 1 Hump. Tenn. Rep. 60; Bay v. Van Rensselaer, 1 Paige’s Rep. 423; Jackson v. Wiseburn, 5 Wend. Rep. 136.) Nor in the present case was it competent for the court in which the decree was entered to relieve the defendant, by vacating the decree and entering it anew. For that which could not be done directly, because of the statutory limitation, cannot be done indirectly by the interference of the court below, after its decree has become absolute and final between the parties thereto, and after the time in which that court was authorized to grant a rehearing had expired. (See Rule 112.)

Although it is to be regretted that the corporation has been deprived of its right of appeal from the decree of 1839,1 think the vice chancellor was unquestionably right in rejecting the application to enter the decree as of a subsequent day, for the mere purpose of securing the right of appeal which had been barred by lapse of time. The order appealed from must therefore be affirmed with costs.


text:
    Catlin and others vs. Valentine.
    The occupation of a building, in a city, as a slaughter house is prima facie a nuisance to the neighboring inhabitants, and may be restrained by injunction. And a general answer of the defendant denying that a slaughter house is a nuisance, is not sufficient to authorize the dissolution of an injunction restraining him from using his building as a slaughter house.
    To constitute a nuisance, it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses and which renders the enjoyment of life and property uncomfortable.
    May 3.
    This was an appeal from an order of the vice chancellor of the first circuit denying the defendant’s application to dissolve an injunction. The bill was filed by certain owners of property in the city of New-York, on the east side of the second avenue, to restrain the defendant from electing a slaughter house at the corner of that avenue and fifth street, and from slaughtering any cattle or other animals at that place, or permitting them to be slaughtered there. The injunction was granted ex parte, before the building erected for a slaughter house was completed, and soon after it was commenced ; but it was afterwards so modified as to permit the defendant to proceed with the erection of his building, and only restraining him from using or permitting it to be used as a slaughter house. The defendant, by his answer, insisted that he intended to use the slaughter house in .such a manner that it would not be a nuisance to the complainants, or to the other inhabitants of the neighborhood. And on that answer he applied to dissolve the injunction absolutely ; which application the vice chancellor denied, and directed the costs thereof to abide the event of the suit.

      Geo. Wilson, for the appellant.

      D. P. Hall Sf H. P. Edwards, for the respondents.
   The Chancellor.

The situation of the defendant’s building in reference to the dwellings of the complainants, as described in the bill and not denied by the answer, would prima facie render the occupation of such building for the purpose of slaughtering cattle there, a nuisance. And as there is no real necessity that such an offensive business should be carried on in this part of the city, where many valuable dwelling houses of the best kind are already erected and are continuing to be built, the vice chancellor was right in retaining the injunction until the hearing. The answer of the defendant that a slaughter house would not be offensive to the complainants is matter of opinion merely, and is not such a denial of the whole equity of the bill as to entitle the defendant to a dissolution of the injunction as a matter of course. To constitute a nuisance, it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable. (Rex v. Neil, 2 Carr. & Payne’s Rep. 485. Rex v. White, 1 Burr. Rep. 337.)

It is perhaps possible to carry on the business of slaughtering cattle, to a limited extent, in such a mannner as not to be a nuisance. But it is wholly improbable that any one will subject himself to the necessary expense to enable him to do it in that part of the city, when the business can be carried on in the unsettled parts of New-York, or in parts of the city where property is less valuable, without the great cost and labor which would be requisite to carry it on where the defendant’s buildings were being erected when this bill was filed. In a case which came before the house of lords, upon an appeal from Scotland, that court sustained the ad interim interdict of the court below, although the defendants, as in this case, denied that in the particular manner in which they intended to carry on their business it would be a nuisance to the neighboring inhabitants. (The Burnt Island Whale Fishing Company v. Trotter, 5 Wils. & Shaw's Parl. Rep. 649.) And in the more recent case of Swinton and others v. Pedie, (15 Shaw & Dunl. Sess. Ca. 775,) the lorijs of session in Scotland refused to discharge the ad interim interdict so far as to permit the experiment to be made whether a slaughter house could be erected, and conducted in such a manner as not to be a nuisance to the northern suburbs of Edinburgh, in the manner suggested by the defendant. The decision of the court in that case was substantially sustained upon appeal to the house of lords, In 1839. (Maclean & Rob. Parl. Rep. 1018, S. C.)

In this case the defendant, upon the final hearing, will have the opportunity to produce proofs to show that the slaughtering of cattle, at the place proposed, will not be offensive to the neighboring inhabitants, and injurious to them in the enjoyment of their property. Or an issue may be awarded to try that question, if either party thinks proper to apply for such an issue. But the order of the vice chancellor continuing the injunction, in this stage of the suit, must be affirmed with costs.


author: Tiie Chancellor.

text:
    Savage vs. Todd and others.
    Where two persons are sued at law upon a joint contract which is alleged to be void for usury, one of them cannot file a bill in chancery, against the plaintiff in the suit at law, for the mere purpose of availing himself of the testimony of his co-defendant to establish the usury.
    But where the defence is personal as to one of the defendants in the suit at law, and such defence can only be established by the testimony of the co-defendant, the former may file a bill in chancery for relief, to enable him to obtain the testimony of the latter.
    May 3.
    The bill in this cause was filed to restrain the executors of J. Birdseye, deceased, from prosecuting a suit at law against the complainant and the defendant Bacon, upon a joint note executed by both ; and to have such note delivered up and cancelled, on the ground of usury. An answer from the defendants upon oath was waived, and the sole object of coming into this court for relief was to enable the complainant to avail himself of the testimony of his co-defendant in the suit at law, to establish the usury. The executors demurred to the bill, which demurrer was overruled by the vice chancellor; from which decision they appealed.
    C. P. Kirkland, for the appellants.

      S. Beardsley, for the respondent.
   Tiie Chancellor.

In the case of Miller v. McCan, (7 Paige’s Bey. 451,) in which the court sustained a bill to enable the complainant to avail himself of the testimony of a witness who was sued jointly with him in an action at law, the defence was personal as to the complainant. The suit was also on a joint and several note, in which the witness might have been sued alone. Here the note is joint, and there can be no defence in equity or at law which does not relate to both defendants equally. And if, as the complainant alleges, Bacon was the principal debtor he is bound to indemnify the complainant, and cannot therefore be examined as a witness in his favor. It is true he might be released by the complainant so as to remove that objection, if it were the only one. But even in that case the complainant should have alleged in his bill that he had released Bacon, or at least that he intended to release him from his liability.

It is a fatal objection, however, to the complainant’s bill that no decree can be made in this case, founded on Bacon’s testimony, which would not be a bar to the further continuance of the suit upon the note, as against himself. ( Woods v. Skinner, 6 Paige’s Rep. 76.) For if the court declares the note usurious and void as to one of the joint makers thereof it is necessarily void as to both. Indeed, if such a bill can be sustained, one of two or more defendants in a joint contract of any description, in which there is alleged to be a good defence as to all, may come into this court for relief as to himself, and may use the other joint contractors as witnesses in his favor. That, I think, would be extending the jurisdiction of this court further than it has ever yet gone, and would be more likely to produce injustice than equity.

The order appealed from must therefore be reversed. And the demurrer must be allowed, and the complainant’s bill dismissed with costs. But without prejudice to the complainant’s defence, if he has any, in the suit at law.

Decree accordingly.


text:
    March vs. Davison.
    It is not actionable to charge a person, who is not legally authorized to prac. tice physic or surgery and to receive compensation therefor, with ignorance of the healing art; or with having destroyed human life by lawful but misapplied efforts to preserve it. But where such person is engaged in an unlawful practice, contrary to the statute, and kills a patient by administering medicines which he believes not to be dangerous to health or life, he will be guilty of manslaughter. And it is actionable to charge him with killing a patient under such circumstances.
    As a general rule, the defendant in any civil suit may file a bill of discovery in aid of his defence in such suit, whore the discovery sought is material to his defence. But no person can be compelled to make a discovery, in aid of the complainant’s defence at law or otherwise, when the effect of such discovery might be to subject him to indictment and punishment for an offence against the laws of the state.
    It is not necessary for the complainant, in a mere bill of discovery, to aver that he cannot otherwise establish his defence at law. And the abstract of the case of Legget v. Postley, (2 Paige's Rep. 599,) to the contrary, is not warranted by the opinion of the court in that respect.
    To sustain a mere bill of discovery, in aid of a defence at law, it is only neces. sary to show that the discovery is material to such defence; not that it is absolutely necessary.
    But where the complainant seeks to give jurisdiction to the court of chancery to grant him relief, upon the ground that he is compelled to come into that court for a discovery, he must not only show that such discovery is material, but must also state affirmatively that he cannot establish such defence without the aid of Ihe discovery sought.
    And where the bill does not show that a discovery is necessary, as well as material, the defendant may demur to the relief sought.
    If the complainant in a bill of discovery wishes to obtain an injunction, to stay the defendant’s proceedings at law until the putting in of an answer to such bill, he must aver that the discovery sought for is necessary to his defence; and such averment must be verified by his oath.
    In a bill of discovery the complainant must charge, either upon his information and belief or otherwise, that the matters of which he seeks a discovery are true in point of fact.
    It seems that the plaintiff in a libel suit may be compelled to discover the truth of the alleged libel, in aid of a justification at law, where such discovery will not subject him to a criminal prosecution, or to a penalty or forfeiture, or render him infamous.
    May 17.
    This case came before the court upon a demurrer to the complainant’s bill of discovery. The defendant had sued the complainant in an action of slander, for charging the defendant with having killed a woman in Schoharie, and of malpractice as a cancer doctor. And the complainant had in that suit pleaded the general issue and given notice with his plea that he would give in evidence, upon the trial, in bar of the action and in justification of the alleged slander, that Davison was not a regular physician or surgeon, nor was he licenced to practice as such, but that he had holden himself out to the public as a cancer physician ; that he was in the habit of applying to such tumors upon the bodies or limbs of those who employed him as he denominated cancers, plasters composed of poisonous ingredients, imminently dangerous to human life, and that by the use of such plasters he habitually endangered the lives of those persons to whom such plasters were applied; that in December 1838, Marcia Morgan, of the county ot Schoharie, applied to Davison to cure a swelling in her breast, and he thereupon applied to her breast a plaster or plasters composed of certain poisonous ingredients, by the application of which plasters, and the procurement of Davison, she became worse and finally died • and that her death was caused by such malpractice. The bill, after setting out the commencement of the suit at law and the defence which had been set up therein, alleged that, as he was advised by counsel and verily believed, the complainant could not safely proceed to trial in that action, nor properly defend himself therein, without a discovery from Davison of the several ingredients, and the proportion of each which entered into the composition of the plasters used by him in his practice as such cancer doctor, and particularly in the plaster or plasters which were so applied to the breast of Mrs. Morgan.

      < And that, as the complainant believed, the said matters were in the personal knowledge of Davison only, and that his answer to the bill would furnish discovery material to the defence in the suit at law. The complainant, therefore, prayed for a discovery of the facts above set forth ; and that Davison might state in his answer what were the ingredients, and the proportions of each which were used in the composition of such plasters as were applied by him to the extirpation of cancers in his general practice, and particularly in the plaster or plasters applied by him to the breast of Mrs. Morgan.

      M. T. Reynolds, for the complainant.
    The bill contains all the essentials of a bill of discovery. It alleges the materiality of the facts sought to be ■ discovered, to the complainant’s defence at law, and the fact that they are exclusively within the knowledge of the defendant. The averment in the bill that the ingredients of the cancer plaster are poisonous, and eminently dangerous to human life, is no more than may be said in reference to all medicines, and ought not therefore to imply criminality in the defendant. The hostility of medicines to life or to its modifications when influenced by disease, is the principle from which is derived their efficacy in the cure of diseases. There is no medicine of any efficacy which, if administered in improper quantities, or at improper times, is not more or less dangerous to life. The discovery sought does not necessarily tend to convict the defendant of a crime, or to subject him to a criminal prosecution, because the ingredients composing the plaster may have been of such a nature as to have either cured the disease or destroyed the patient, and that within the knowledge of the defendant. This is the fact with many remedies for dangerous diseases. There is no averment in the bill, nor is it necessary as a defence to the action at law, that there existed any intention to injure or destroy the patient, on the part of the defendant. And the effect upon life of the ingredients applied in this case will be a question of fact for the jury.

      S. H. Hammond, for the defendant.
    The declaration in the suit at law alleges that the defendant had charged the plaintiff with malpractice and manslaughter, crimes indictable and punishable by the laws of this state. To sustain a bill of discovery, in aid of a defence at law, it is necessary for the complainant to show that the discovery sought is material to his defence in the suit at law; and if this is not shown by the bill the defendant may demur. (Leggett v. Postly, 2 Paige, 601. 2 Hoff. Ch. Pr. 109.) The complainant must show affirmatively in the bill that his defence cannot be established at law by the testimony of witnesses, or without the aid of the discovery which he seeks; and it must be a matter which the complainant has a right to have discovered. The bill does not contain these requisites. The complainant does not charge the facts stated in his bill upon his own knowledge or that they exist. The complainant is not entitled to the discovery sought by him. It is the defendant’s secret. It may be, and is of great value to him ; it is that by which he gains his support, and this court will not deprive him of the benefit of it. If he is guilty of the charges, the people have their remedy against him by indictment. If the discovery is material the complainant certainly is not entitled to it, for it may subject the defendant to an indictment and punishment. (McIntyre v. Mancius, 16 John. Rep. 592. 1 Mad. Ch. R. 214.) The defendant cannot be compelled to answer as to any fact which may form a link in a criminal prosecution. (2 Mad. Ch. R. 320, 321.)
   The Chancellor.

The bill in this case is defective in form. For the complainant merely states the defence which he has put in to the defendant’s actions of slander, but does not charge, either upon information and belief or otherwise, that all or any of the matters specified in the notice of justification annexed to his plea, in the action at law, are true in point of fact. It is not necessary, in a mere bill of discovery, for the complainant to aver that he cannot otherwise establish his defence at law; and the head note to the contrary in the case of Leggett v. Postley, (2 Paige, 599,) is not warranted by the opinion of the court in that respect. By referring to the ease itself, it will be seen that the court made the distinction between a mere bill of discovery, and a bill in which the complainant asks for relief in this court upon the ground that he has been compelled to come here for discovery. In the first case, to sustain a bill of discovery in aid of a defence at law, the complainant must show that the discovery sought is material to his defence at law ; not that it is absolutely necessary. But where the complainant seeks to give jurisdiction to this court to grant relief, upon the ground that a discovery was necessary, and that this court having gained jurisdiction of the cause for that purpose will retain it for the purpose of doing complete justice between the parties, he must not only show that the discovery is material to his defence in the suit at law, but must also allege affirmatively that he cannot establish such defence at law without the aid of the discovery sought. And in such a case if the bill does not show that the discovery is necessary, as well as material and convenient, the defendant may demur to the relief sought by such bill. Under the decision of our court of dernier resort in the case of Laight v. Morgan, (1 John. Ca. 429,) and the subsequent decisions in the court of chancery here, the defendant must answer and make the discovery sought although he demurs to the relief. A similar averment of the necessity of a discovery in aid of the defence at law must be made and sworn to where the complainant in a bill of discovery asks for an injunction to stay the defendant’s proceedings there until he has answered the bill. The only formal objection to the bill in this case which can be noticed on this demurrer to the discovery sought, the want of an averment that the matters stated in the complainant’s notice of justification were true in point of fact, has probably arisen from a mere oversight on the part of the counsel who perused and signed the bill, and may still be obviated by an amendment. It is proper, therefore, to look into the merits of the case for the purpose of ascertaining whether upon an amended bill, removing this formal ground of objection, the complainant will be entitled to the discovery asked for here.

As a general rule, the defendant in any civil action may file a bill of discovery to aid him in the defence of such action, where the discovery sought is shown to be material. And in Wilmot v. Maccabe, (4 Sim. Rep. 263,) Sir Launcelot Shadwell supposed it to have been settled by the house of lords, that where a person brings an action at law for a libel, and the defendant justifies the publication on the ground that the matters published by him were true, he may file a bill of discovery and compel his adversary to admit the truth of the allegations in the supposed libel. I do not, however, understand him as supposing that the defendant is bound to answer any matter in a bill of discovery, in such a case, which would subject him to a criminal prosecution, or render him infamous, or which would subject him to a penalty or forfeiture. The opinion of Lord Eldon, in the case of Macauley v. Shackell, (1 Blights Rep. N. S. 96,) to which his honor refers, left that question wholly undecided, although he undoubtedly meant to be understood as deciding that the mere fact of the publication being libellous was not sufficient to deprive* the defendant in the suit at law of the right to a discovery of the truth of the alleged libel, in aid of his justification of the publication. The question in that case was not whether the defendant in the bill in chancery was bound to make a discovery which would subject him to an indictment, but it was as to the right of the complainant to come into that court for a commission to examine witnesses abroad to aid him in his justification of the alleged libel. And Lord Eldon, although he did not say in terms that the defendant in such a case was not bound to criminate himself, was very careful on the other hand not to say that this court could compel the defendant to make a discovery which would subject him to indictment.

In the case of Thorpe v. Macauley, (5 Mad. Rep. 218,) which came before Sir John Leach, a few years previous, in relation to a libel upon the same person as the governor and chief justice of Sierra Lecone, it was held that the party sued at law for the alleged libel might file a bill in this court in aid of his defence ; but that the defendant in such bill was not bound to make a discovery as to the truth of the matters stated in the alleged libel, inasmuch as it imputed to him conduct which amounted to an indictable misdemeanor. His honor, therefore, overruled the demurrer to the whole bill, and allowed the defendant to file one which only extended to the discovery of matters which would not criminate himself. And this decision is sustained by the judgment of Lord Langdale in the more recent case of Glynn v. Houston, (1 Keen’s Ch. Rep. 329;) and is in accordance with the expressed opinion of this court in the case of Leggett v. Postley, to which I have before referred. (See also Wigram on Disc. 61, Pl. 85, 86.)

In the case under consideration, if the declaration in the suit at law states nothing more than is alleged in the complainant’s bill, it is doubtful at least whether the words charged to have been spoken by him are actionable. For it appears by the bill itself that Davison was not a regular physician or surgeon ; nor was he licensed to practice as such according to the laws of this state. And as he cannot, therefore, recover any compensation for his services, under the provisions of the revised statutes, (1 R. S. 2d ed. 451, § 24,) he cannot maintain an action of slander for charging him with malpractice in a profession which he cannot legally exercise; unless he is charged with having committed some offence involving moral turpitude or subjecting him to an infamous punishment. In the case of Thompson, the originator of the steam practice, who was indicted for murder, in the state of Massachusetts, for having killed a patient with steam and lobelia, the supreme court of that state held that, as there was no law prohibiting him from practising without a license, he could not be convicted either of murder or manslaughter if he administered the medicine, which killed the patient, through ignorance of its dangerous character, and with an honest intention and belief that the same would cure instead of killing the person to whom it was given. (Commonwealth v. Thompson, 6 Mass. Rep. 134.) It is true, Chief Justice Parsons said in that case, that if the solicitor general had established the fact, stated in his opening, that the prisoner had previously ascertained, by experience, the injurious effects of his remedy, in the death or bodily hurt of his patients, and had afterwards administered it in the same form to the deceased, who was killed by it, the court would have left it to the jury to determine whether it was so administered with an honest intention of curing the patient, or from obstinate rashness or fool hardy presumption; in which latter case the prisoner would have been guilty of manslaughter at least. For it would not have been lawful for him again to administer a medicine of which he had such fatal experience. Our statute does indeed prohibit persons not authorized by law from practising physic or surgery within this state. And as the person who should attempt to practice contrary to the statute would be engaged in an unlawful act, he could not probably escape a conviction of manslaughter if he should kill a patient, even where he supposed the remedy administered was not dangerous to health or life. But the statute does not extend to the case of those who only deal in roots, barks or herbs, the growth or produce of the United States, however dangerous to human life such remedies may be in the hands of ignorant empirics. And in this case the bill does not allege that the suit at law is brought for charging Davison with having killed the woman in Schoharie knowingly and intentionally, or while he was engaged in an unlawful practice with poisonous medicines not the growth or produce of the United States. If the declaration does not show that the complainant intended to impute any thing to the defendant, except the destruction of the life of a human being through mere ignorance of the dangerous nature of the remedies which he applied, and without any fault on his part, the charge certainly is not actionable. And the remedy of the complainant is perfect at law, by demurrer to the declaration, or by a motion in arrest of judgment. But if he has charged him with destroying the life of another by the use of poisonous medicines imminently dangerous to human life, with a full knowledge of their deleterious effects upon the healths and lives of others, or when engaged in an illegal practice contrary to the laws of the state, it is a charge of a felonious homicide, which if true ought to subject the defendant to imprisonment in the state prison. And it would be a violation of the spirit of the constitution, which declares that no person shall be compelled in any criminal case to be a witness against himself, to require him to make a disclosure, upon a bill of discovery, which might subject him to indictment and punishment for the crime of manslaughter.

The conclusion at which I have arrived in this case therefore is, that whether the complainant did or did not intend to impute to the defendant the crime of felonious homicide, this bill of discovery in aid of the defence at law cannot be sustained against one who was not legally authorized to practice physic or surgery as a profession. In the first place, upon the ground that it is not actionable to charge such a person with ignorance of the healing art, or with having destroyed human life by lawful but misapplied and well intended efforts to preserve it. And in the second, that no one can be compelled to make a discovery, in aid of a defence at law or otherwise, the effect of which discovery might be to subject him to indictment and punishment for an offence against the laws of the state. The demurrer must, therefore, be allowed. And the complainant’s bill must be dismissed, with costs, to be taxed; including the costs of the motion to dissolve the injunction.

Ordered accordingly.


text:
    Pugsley vs. Pugsley.
    Where a bill for a divorce on the ground of adultery is taken as confessed, the master to whom it is referred to take proof of the facts charged in the bill and to report such proof to the court with his opinion thereon, must take proof not only of the adultery but of all the material facts which are necessary to give the court jurisdiction to grant a divorce in the particular case. He must also enquire and report whether there, has been any condonation of the adultery, by a voluntary cohabitation between the parties after knowledge of the adultery of the defendant.
    May 17.
    The bill in this case was filed by the wife for a dissolution of the marriage contract, on the ground of the adultery of the husband. The bill alleged that the parties were married in the city of Albany in 1835, and that from that time both parties had been and still were inhabitants of this state. The first act of adultery wTas charged to have been committed with an inmate of a house of ill fame in the city of New-York, in 1838, whose name was unknown to the complainant. And several similar of-fences were charged as having taken place in the defendant’s law office in Albany, with several prostitutes whose names were also unknown. The defendant suffered the bill to be taken as confessed, and the usual order of reference was made to a master to take proof of the facts charged in the bill and to report such proofs, with his opinion thereon. But the master merely reported as to the adultery ; without stating whether the other averments in the bill were true. The cause was submitted upon the bill taken as confessed, and upon the master’s report.

      W. W. Frothingham, for the complainant.
   The Chancellor.

The proof is satisfactory as to the adultery. For it is evident, from the testimony of Carr, that the strange female with whom the defendant was found in bed in New-York, in the fall of 1838, was not the complainant, with whom the witness was acquainted. But the master’s report is defective in relation to the other matters referred to him. Under the usual order of reference, to take proof of all the material facts charged in the bill and to report such proof to the court with his opinion thereon, the master should require proof of the facts which are necessary to give this court jurisdiction of the case. He should also examine the witness as to whether there had been any condonation of the offence, by the complainant, by cohabiting with the guilty party after being informed of the adultery. (Dodge v. Dodge, 7 Paige’s Rep. 589.) Here there is nothing in the proofs to show that the marriage took place in this state, or that either of the parties resided here when the adultery was committed, or at the time of the commencement of this suit ; which matters are material to give jurisdiction to this court to grant a divorce dissolving the marriage contract. (2 R. S. 144, § 38.) Where the defendant admits the adultery, by the answer, or by permitting the bill to be taken as confessed, the court requires proof of the facts necessary to give jurisdiction to the court to grant a divorce in the particular case, as well as proof of the adultery to prevent collusion between the parties.

I presume the facts are, as alleged in the bill in this case, that the marriage was solemnized here, and that the parties have continued to reside in this state ever since. But as there is nothing in the report on this subject, and nothing in the evidence reported from which the fact can be legally presumed, it must be referred back to the master to take further proof to establish this allegation in the bill. And. the master must also examine the witness Carr as to the time when he first disclosed the fact of adultery, testified to by him, to the complainant or her friends; and whether the parties lived together as husband and wife after that time. And he must make a full report as to the truth of every material fact alleged in the bill.

On the coming in of such further report, the complainant may apply, upon any motion day or in term, for a final decree thereon.


author: The Chancellor

text:
    Pomeroy and others vs. Avery.
    Where the surety in a bond given upon the allowance of an injunction is a material witness for the complainant, he may be discharged by the court, and his bond cancelled, upon the complainants’ giving a new bond with sufficient sureties to be approved of by a master after due notice to the defendant in the suit of the time and place of approving the now sureties.
    May 17.
    This was an application by the complainants to substitute a new surety to a bond given upon the allowance of an injunction, upon an affidavit that the surety in such bond was a material witness for the complainant in the suit.

      Q, Wright, for the complainants,

      0. jlllen, for the defendant.
   The Chancellor

directed the surety to be changed and the bond to be delivered up and cancelled, upon the complainants’ filing a new bond of the same date, with the like condition, and in the same penalty, with two sufficient sureties to be approved of by a master, upon due notice to the defendant of the time and place of such approval.