author: Denio, Ch. J.

text:
    Du Peirat v. Wolfe.
    The consignee named in a ship’s papers is not liable for the payment of duties on goods burned in a public store, which were sent and left there on account of their not having been claimed and permitted by the importer or consignee.
    One cannot be made the consignee bf goods without accepting the consignment; and the government acquires no rights against him as virtual importer, for the duties, if he chooses to renounce that character, and refuses to have anything to do with the goods.

      Appeal from a judgment of the Supreme Court entered upon the report of a referee.

    The action was commenced in June, 1846, in the court of chancery by the plaintiff, in his own name, but really for “The proprietors of the United Vineyards of La Eochelle,” in France, an association or partnership, formed ■under the laws of France, against the defendant, who was their agent in the United States, for an account of his agency. The transactions between the parties related to five distinct shipments of brandies, one by the Eloise, one by the Alexander, one by the Eagle,' one by the Union, and one by the France. The cause was referred to Edgar S. Van Winkle, Esq., who refused to open the accounts of the shipments by the Eloise, the Alexander, the Eagle, or the Union. The only question presented on this appeal relates to the shipment by the France. This shipment consisted of certain brandies consigned by the plaintiff to the defendant, under the agreement above mentioned, which arrived inlSTew York, were put into store in the custody of the collector, and were destroyed by fire in 1845, except a small part thereof, which'was sold by the government, and the proceeds applied towards the payment of the duties on the whole shipment. In settling this account, the referee allowed the defendant a credit for the amount of the unpaid duties on the brandy so destroyed, with interest.

      D. B. Eaton for the appellant.

      John K. Porter, for the respondent.
   Denio, Ch. J.

This suit was commenced by bill in the late court of chancery, and the principal object of it was to require the defendant to account for the proceeds of the sales of certain shipments of brandies by parties in France to the defendant in the city of New York. There were five shipments in all, by as many different vessels, made in the years 1844 and 1845, and they were made pursuant to a contract between the owners of the brandies, now represented by the plaintiff, and the defendant. By that contract the said owners constituted the defendant their sole agent.for the sale of their liquors in the United States, and the defendant undertook, for certain commissions specified therein, to make sale of such as should be shipped to him for that purpose, to make advances of a certain portion of the cost price, and render accounts of sales and remit the proceeds, after deducting the advances, &c., and to furnish periodical accounts current, &c. No question now arises upon any of the shipments except one, namely, that which was sent by the brig “ France,” which arrived in the port of New York about the tenth day of May, 1845, and which consisted of one hundred and thirty-eight casks of brandy, consigned by the owners, which, for shortness, I will call the plaintiff, to the defendant, to sell on commission pursuant to the contract. The referee before whom the case was tried, after the jurisdiction over it had devolved upon the supreme court, found that a balance was due the plaintiff upon the other shipments; but upon the shipment by the “France” he found a large balance due to the defendant, and his report was in favor of the defendant for $8,158.53. The principal item allowed in favor of the defendant, against the plaintiff, and the only one necessary to be now examined, was the sum of $7,259.98, for duties payable to the treasury of the United States, upon the brandies imported by the brig “France,” and the interest thereon for several years. The referee held that the-defendant was liable to the government for these duties, and that, although he had not paid, them, they were a proper charge in his accounts against the plaintiff. The general term of the supreme court concurred in this view, and affirmed the judgment entered on the report. This presents the only question which is raised by this appeal on behalf of the plaintiff. On or shortly after the arrival of the brig “France,” the casks of brandy shipped by the plaintiff were placed in a public store-house, No. 27 Beaver street, under the charge of the collector of the port, and remained there until July 19th thereafter, when a fire occurred in the building by which the greater part of them, together with a large amount of other similar property, was destroyed. A few casks of the plaintiff’s brandies were saved in a damaged condition, and were sold by the custom-house authorities, who applied the proceeds to the discharge of the duties thereon, which left a small balance which was applied towards the duties on the part wholly destroyed. The amount allowed to the defendant on account of his supposed liability to the government was the balance of the amount of duties on the whole shipment. The manner in which the plaintiff’s brandies came into the public store is not stated in the proof, or the referee’s report, or in the statement of facts prepared by the general term. But it is conceded that they were not there under bond. Indeed, that circumstance is a part of the defendant’s case; for if they had been bonded according to the provisions of the revenue laws, and had been lost, as they were, by an accidental fire, the duties would have been remitted pursuant to an act of congress, passed after the fire and before the trial. That provision is in the following language: “Be it further enacted,” &c., “ that the secretary of the treasury, be and he is hereby authorized, upon production of satisfactory proof to.Mm of the actual injury or destruction, in whole or in .part, of any goods, wares or merchandize, by accidental fire or other calamity, in any public or private ware-house, under bond, or in the appraiser’s store undergoing appraisal in pursuance of law or regulations of the treasury department, or while in transportation under bond from the port of entry to any other port of the United States, to abate or refund, as the case may be, out of any moneys in the treasury not otherwise appropriated, the amount of import duties accruing thereon.” (Laws of the U. S. of 1853-54, page 273; § 8.) The referee states in Ms conclusions that he considered tMs act not to be applicable to the case, on the single ground that these liquors did not appear to have been under bond. The system upon wMch the defendant was allowed to recover for these duties against the plaintiff was, that, as importer of the property, he was personally liable for their payment; that the plaintiff, as owner and sMpper, was not liable to the government for them, though, as between Mm and the defendant, they ought to discharge him, and hence that the defendant could not be indemmfied respecting them, except by recovering their amount in tMs action. I shall not spend time in inquiring whether or not the conclusion would follow if the premises were admitted. But I am of opinion that the defendant was not shown to. be the importer of the brandies, in the sense of the act of congress. The provisions concerning the entering, unloading, and storing of goods imported from foreign countries were governed by the act passed March 2, 1799. (1 U. S. Stat. at Large, p. 627.) The warehousing system, wMch modified some of these provisions, had not then been passed. It must be conceded, that if the defendant had assumed the position of consignee of this property, he occupied the same situation and was subject to the same liabilities as though he had imported it on Ms own account. As between Mm and the plaintiff, he was no doubt chargeable as consignee. The goods were sent by the plaintiff to him pursuant to the. contract, and it is to be assumed that the bill of lading was made out in his name as consignee, and was indorsed to him, and that the ship’s manifest showed him to be the consignee. He owed to the plaintiff the duty of receiving and taking care of the brandies, and paying the freight and duties upon them and-selling them according to the agreement. It is,another question whether 'he had assumed tnht position in respect to the government and its officers. To determine this an examination of the revenue act above mentioned is necessary. According to that act, a vessel on arriving from a foreign port is to make a report on oath, with an account of her cargo. (§ 30.) This is to be done by the master. The next step is for the importer or consignee to make an entry of the importation, the name of which is given, consisting of a detailed statement of the kind and value of the goods, the marks on the packages, &c., and he is to exhibit the invoices. (§ 36.) A permit must then be obtained to land the goods. As a condition to granting it the duties, of which an estimate' is to be made by the collector, are to be first paid or secured to be paid in the manner afterwards provided. (§49.) The landing of goods without a permit having been obtained, is made highly penal. Each person concerned in it is subject to a heavy penalty, and is disqualified from holding any office of trust or profit for seven years, and the goods are forfeited. (§ 50.) Section sixty-two repeats that fill duties on imported goods shall be paid, or secured to be paidj before a permit to land shall be granted. If secured instead of being paid, it is to be by a bond of the importer, with sufficient sureties, conditioned to pay the amount, in case of importations like that in question, in eight, ten and twelve months. There is a proviso that in lieu of sureties to the bond, the collector may accept a deposit of the goods, or such part of them as may be sufficient, which are to be kept in store at the expense and risk of the importer, and may be sold if the duties for which the bond was given are not paid. There is no provision for dispensing with the importer's or consignee's bond, in any case, unless the duties are paid down. Goods thus-deposited as security for the duties which are also secured by the bond of the importer, are said to be bonded, or to be in a public store-house in bond. Goods thus brought on shore are fully imported. The importer or the con-, signee, who stands in his position, is personally liable, and by the general law is obliged to pay the duties to the government, though the goods should be. destroyed or stolen. His liability would generally be established by the bond, but if the duty of taking a bond should be inadvertently or fraudulently omitted, the importer or consignee would still be personally liable on the obligation created by the statute imposing duties upon the importer in the case of a foreign importation. Hence in The United States v. Seymour (1 Wash. C. C. R. 482), where the bond of a person other than the importer had been taken, on a transfer of the property to such person by the importer, which had proved unavailing, it was held that the latter was still liable to the government by force of the statutory obligation. The goods had been landed under the usual permit, so that no question could be made but that the defendant had imported them. The same general doctrine of the original and absolute liability of the importer, and the identity of the consignee with the importer in his own right, is recognized in the other cases cited by the defendant’s eojmsel. (Wolfe v. The Howard Ins. Co. 1 Sand. S. C. R. 124; Same v. Same, 3 Seld. 583; Knox v. Devins, 5 Mason C. C. R. 380; Meredith v. The United States, 13 Pet. 486.) In this case the defendant did not pay the duties, for if he had done so this question could not have arisen; he did not give any bond, with or without sureties; for if that had been done the duties would have been remitted pursuant to the act of 1854, and this judgment never could have been recovered. How, then, did he procure a permit to land the goods, if he did procure one, or, if he did not, how did they get into the public store? This, I think, is answered by a reference to the fifty-sixth section of the act. It provides, in substance, that if goods remain on board for fifteen days after the master reports, without a permit for landing having been obtained, the inspectors of the revenue are to take possession of them and put them in a public store, to be kept at the charge and risk of the owners, and they are to be sold to pay the duties, if not claimed within nine months. The fifteen days may be reduced to five with the consent of the master of the vessel, or of the owner or consignee of the goods. I can not conceive of any other way in which these brandies could have been unladen from the vessel and stored in the public warehouse, than that here provided. If there is any other method the defendant should have shown it. If they came, to land under these provisions, the defendant did not assume the position of importer or consignee respecting them. He may have violated his duty to the plaintiff as the shipper and- owner of the property, but that would not give the government any title as against him. Ho person can be placed in the situation of consignee without his consent. If one in a foreign country send goods by ship to 'a merchant in Hew York, the merchant may receive them or not, at" his pleasure; and if he refuse contrary to his duty to the consignee, still he does not constitute himself §,n importer of the goods. He can not be made the consignee without accepting the consignment, and the government acquires no rights against him if he choose to renounce the. character with which he is sought to be clothed. To be sure, one in whose name a bill óf lading is made out or. endorsed is in one sense a consignee, though he may never have heard of the shipment, 'and though he should renounce that character. But this question does not turn on verbal distinctions. When. the statute or the adjudged cases speak of the consignee as, in judgment of law, an importer, and chargeable with duties, it is a person to whom goods are consigned and who accepts the consignment, who is intended. It would be preposterous to charge a person with liabilities imposed by law on a consignee as virtual importer, when he has refused or neglected to have anything to do with the goods consigned. The section last mentioned, I think, recognizes the distinction between a mere nominal consignee, who is made such by being named in the manifest or bill of lading, and one who has assumed the responsibilities of that position. It allows a consignee, among other parties, to give a valid consent that unclaimed goods may be landed within the fifteen days. The convenience of the ship owners or of the revenue officers requires that a vessel should be discharged as soon after its arrival as possible. Hence the statute permits the period for landing unclaimed goods to be shortened by the consent of the consignee, master, &c., but I conceive that he does not, by giving such consent, commit himself to any further connection with the goods.' I conclude, therefore, that the. Ian ding and storing the goods by the revenue officers, under the circumstances supposed, did not create any liability against the defendant in favor, of the government. Whether the plaintiff, as owner, would have been liable to pay them is a different question. It would seem reasonable that, having availed themselves of the privilege of the port, they ought to pay the duties imposed by the government to which the port 'belonged. I doubt, how,ever, whether the law has provided any other remedy for their collection than the sale of the goods. That would ordinarily be a sufficient remedy. It failed in this case on account of the destruction of the property by fire; but that afforded no reason for charging the defendant if he would not have been liable if the goods had not been burned. I have been confirmed in this conclusion by decisions of the .treasury department, evidence of which was produced by the plaintiff’s counsel and quoted in Ms brief. By these it appears that in 1843, during the incumbency of the late John C. Spencer, certain goods imported from abroad were sent to the public store as unclaimed goods, the consignee not choosing to enter, them for. landing. The collector exacted storage from him and compelled Mm to pay it. The learned and distinguished secretary decided, on appeal to Mm, that it was erroneously exacted. It was not then repaid, from a doubt whether it was regular to order it paid out of the treasury. On the accession to office of Secretary Bibb, he directed it to be paid by the collector of New York, as money illegally and improperly received from the party who paid it, as storage charged on goods of wMch he was the involuntary consignee, and which he declined to enter and receive. In 1849 the defendant in this case applied for a remission óf the duties upon a quantity of brandies imported into New York and consigned to Mm, and which were destroyed by fire in the conflagration of July, 1845. It is said in these papers that the brandies came in the brig “France” from La Rochelle, and were consigned to Mr. Wolfe in the manifest, and were sent to the public store, No. 27 Beaver street, as unclaimed for want of appearance at the custom house of any importer or owner to make entry at the time the vessel was - discharged. The. then secretary, Mr. Robert J. Walker, decided in conformity, he says, with the decisions of two of Ms predecessors in the case before mentioned, that by the destruction of the goods in the manner stated, and the absence of any bond to secure the duties, the duties on such unclaimed goods are lost to the United States, and no legal remedy for their recovery existed. The decisions of the secretary of the treasury, though not of the same authority as the judgment of judicial tribunals, are yet entitled to considerable weight upon questions relating to the construction of the revenue laws. Such questions are to be determined by him in the first instance, and, until reversed by the courts, govern the conduct of the various officers of the customs. We admit the authentic reports of his determinations, not as binding precedents, but as some evidence upon disputed questions which appertain to his functions. We have looked into the papers produced by the plaintiff’s counsel, not as evidence of any fact in this case, because matters of fact can not be brought before us in that way, but as the decision, of a high officer upon a question of law connected with his department, and which we are called upon to decide. They are of the same general character as the determinations of courts of inferior jurisdiction, not binding upon us, but which are yet worthy of consideration, though their weight depends chiefly upon the reasonableness of the grounds upon which they proceed. Upon the case before us they are important as reflecting light upon the act of March, 1854. By the terms of that act it is essential, in order to the remission of the duties upon goods consumed by fire in a public warehouse, that they should be under bond. While no provision is made where the property, although found in such a warehouse, was,not under bond, and yet the apparent purpose is to discharge the owner of such goods, where his whole interest in them has b.een lost by such an accident. It has, I trust, been made apparent that the terms of the act are as broad as the occasion and the general intention could be. They could not be legally in a public store unless they were bonded, or had been sent there as unclaimed goods in consequence of the importer or consignee failing to appear and obtain a permit for landing. In the latter case no provision was necessary, as the settled practice of the treasury department was to consider the duties lost to the government when the goods had been destroyed by fire. Hence no such provision was made. It is presumable that acts respecting the collection of the customs and amendatory of or qualifying existing provisions of the revenue law are prepared at the department, as it is most proper they should be, considering the complex nature of the subject and the intricacy of the statute, and I have very little doubt but that the act of 1854 was so prepared. But, however that may bé, I am entirely satisfied that goods burned in a public store, which were sent and left there on account of not being claimed and permitted by the importer or consignee, do not render 'the consignee named in the ship’s papers liable to the payment of duties. Hence I am in favor of reversing this judgment and ordering a new trial.

All the judges being in favor of reversing the judgment, except Davies and Hogeboom, who expressed no opinion, judgment reversed.


source: Caselaw Access Project

author: Johnson, J. Denio, Ch. J.

license: Public Domain

text:
    S. C. Talmage and others, Commissioners of Highways, &c., v. Nathaniel Huntting.
    Before it can be determined whether a particular highway has been encroached upon, its limits and boundaries must be ascertained and determined, in some mode prescribed by law.
    The jury which is called to determine the disputed question of an encroachment has no power to-determine the question of the width and boundary of a highway according to the previous dedication or use, which has been neither laid out nor ascertained and described by the commissioners of highways.
    That duty belongs exclusively to the commissioners, and is to be performed by them in an entirely different manner.
    In ascertaining and describing a road which has not been laid out, but has become a highway merely by public use for twenty years, the power of the highway commissioners is limited to ascertaining the boundaries of the road according to the actual use for the twenty years.
    They have no right, in the exercise of this power, to alter and change the boundaries, with reference to present public convenience.
    Under the aqt of the legislature of February 20, 1830, regulating highways and bridges in the counties of Suffolk, Queens, and Kings, authorizing the commissioners of highways to cause such roads as have been laid out, but not sufficiently described, and such as were used as highways for twenty years or over next preceding the 21st of March, 1797, and had been worked and used as such, constantly, for the last six years, but not recorded, to , be ascertained, described, and entered of record in the town clerk’s office, the commissioners have no power “ to survey, stake out, and record such width of highway as appears to be necessary for the public convenience.”

      Appeal from the Supreme Court.

    The action was brought to recover several penalties alleged to have been incurred by the defendant in refusing to remove a fence erected by him, which was claimed by the plaintiffs to be an encroachment upon the principal road or highway in the village of East Hampton, in the county of Suffolk. The penalty is given by the “ Act regulating highways and bridges in the counties of Suffolk, Kings, and Queens,” usually called the Long Island road act. (Laws of 1830, chap. 56.) The eighty-fifth section declares that “ in every case where a highway has been, or shall be encroached upon by fences or buildings, the commissioners of highways of the town shall, if in their opinion it shall be necessary, order the person or persons who shall have erected the same, or the overseer of the district, to remove such fences or buildings, so that the highway may be of the width originally intended.” It further provides that the order, which is to state the width of the highway and the extent of the encroachment,1 shall be reduced to writing and signed; that notice to remove the obstruction shall be given, and a forfeiture is imposed of fifty cents for each day the obstruction shall remain beyond sixty days after the time specified in the order for removing it.
    If the occupant or owner of the land shall deny the fact of encroachment, a jury is to be summoned by a justice of the peace to inquire into the premises. If they find that there has been an encroachment, they are to make a certificate to that effect, stating certain particulars, including the name of the person who made the encroachment, which is to be filed with the town clerk, and the occupant is to remove his fences immediately, if they were erected within ninety days, and otherwise within sixty days, under a penalty of fifty cents for each day’s neglect. (§§86 to 88.) The penalties are to be sued for by the commissioners of the town. (§ 104.) The complaint sets out an order of the commissioners of the town of East Hampton, dated June 11, 1859, stating that they had ascertained that the defendant had encroached upon the public highway or town street in that town, by erecting a fence in front of his lot extending into the said highway, and encroaching upon it eight feet and nine inches at one end, and eight feet at the other, and particularly describing the width of the street and the place of the encroachment; that the commissioners had served a copy of .the order on the defendant, who had served a notice on them denying the encroachment; that they thereupon applied to a justice, who summoned a jury, who were empanneled and sworn according to the act, and that they made and subscribed a certificate which is set out, and is the same which was proved on the trial. It is dated August 19, 1859, and finds the"fact of the encroachment by the defendant substantially as stated in the notice given by the commissioners. It is stated in it that it was made “without determining the validity of the record of said highway.” The answer denies that the alleged highway is or ever has been a public highway, “ except so far as it became so by being used by the public,” and insists that the commissioners have no jurisdiction to proceed for an encroachment under the statute, except in the case of a road laid out and recorded, or adjudged by the commissioners to have been used for twenty years prior to March 21,1797. It alleges certain illegal conduct of the jury in rejecting evidence, and states that the defendant thereupon brought a certiorari by which the proceedings were removed into the supreme court, where they were affirmed on the 19th of March, 1861, and that by deducting the time during which these proceedings were pending, only forty-eight days have elapsed from the time of signing the certificate and the bringing of this action. If the time during which the certiorari was pending is to be allowed", no penalty had been incurred at the commencement of this suit, as the defendant, under the circumstances proved, had sixty days after the making of the certificate to remove the fence.
    The case was tried before Judge Emott, at the Suffolk circuit, in June, 1862. The plaintiffs gave in evidence from the town records, besides the order of June 11,1859, and the certificate of the jury, an order of the commissioners of highways of the town of East Hampton, datedApril 1st, 1833,for recording the road in question. The introductory part was as follows: “ Whereas, frequent difficulties arise respecting the boundary lines of Town street, in consequence of there being no record of that street, we, William D. Parsons, &c., commissioners of highways of the town of East Hampton, do, after much examination of such testimony as can be collected, and all the circumstances' relating thereto, proceed by virtue of the laws, &c., to survey, stake out and . record such width of highway as appears to be necessary-for the public convenience; therefore,” &c. The remainder of the instrument contains a survey of the highway. They placed, it is stated, a stake in the centre of the road at each of the termini, and at the angles where the course or the width changed, stated the course and distances, -and prescribed the'width on each side of the centre line at the various sections—that distance being from four rods in the narrowest section to four rods and twenty-eight hundredths in the widest—and they annexed a plot and field book to-the document.
    The paroi evidence on the trial related principally to two subjects: the side boundaries of the road as evidenced' by actual use, and the extent to which the line fixed by the foregoing record would coincide with, or diverge from, the boundaries of the road as used and traveled. It appeared that the lots of ground on each side were held under allotments made dui’ing the last and preceding centuries, and prior to 1797; which allotments described the several parcels as abutting on the street, and, inferentially, that the street had been in use from the first settlement of the town. The lines at the sides were not straight; nor were the houses situated uniformly as it respected the Street; and the fences were built in the same irregular manner— running from one house to another. The width of the road, according to this record of 1833, was substantially the same as the space left open by the actual use, but in several' instances buildings, gardens and inclosures were infringed upon,"and in one case a dwelling-house was intersected. As respects the place wheré the alleged encroachment was situated, it appeared that the new fence complained of. was built further towards or into the street than the front fence which existed there before and at the time of the.record of 1833. The evidence upon the user at that place was somewhat contradictory, but the preponderance of proof seemed to be that the new fence was without the defendant’s enclosures as they had always theretofore existed, but that the ground on which it was situated had been used by the defendant and Ms predecessors in the occupation, for piling.wood, depositing ashes and burying potatoes; but that it was still traveled occasionally, when the incumbrances would permit, by foot passengers. One of the commissioners who joined in the order of 1833 was examined as a witness on behalf of the plaintiffs, and testified that their intention was to define the street according to the old boundaries. The facts' respecting the certiorari were admitted to be as stated in the answer. There were no exceptions taken upon the trial; and at the close of the testimony the learned judge directed a verdict for the plaintiffs for $275—that being the amount of the penalty incurred if the case of the plaintiffs was established, and if the certiorari did not affect the case. The general term gave judgment for the defendant, with costs, and the plaintiffs thereupon brought this appeal. The case was submitted on printed briefs.

      W. P. Buffett, for the appellants.

      George Miller, for the respondent.
   Johnson, J.

There was no legal evidence of any encroachment by the defendant upon the street or Mghway m question. It was not originally a laid out highway, but had become a highway by having been used as. such for over twenty years preceding the 21st of March, 1797. It must be quite obvious to every one, that before it can be determined whether a particular highway has been encroached upon, its limits and boundaries must be ascertamed and determined in some mode prescribed by law. The jury wMch is called to determine the disputed questian of an encroachment, has no power to determine the question of the width and boundary of a highway, according to the previous dedication or use, which has been neither laid out nor ascertained and described by the commissioners of highways. That duty belongs exclusively to the commissioners, and is to be performed by them in an entirely different manner. The proceedings in this case to determine the question of the encroachment evidently proceeded upon the assumption that this duty had been performed by the commissioners of highways of the town by the sur vey and order of the 1st April, 1833, which was read in evidence, But it will be seen that this was not such an order or proceeding as the statute authorised. By the first section of the ‘act of February 20, 1830, regulating highways and bridges in the counties of Suffolk, Queens, and Kings (sub, 3), the commissioners are authorized to cause such roads as have been laid out, but not sufficiently described, and such as were used as highways for twenty years or over next preceding the 21st of March, 1797, and had been worked and used as such constantly for the last six years, but not recorded, to be ascertained, described, and entered of record in the town clerk’s office. This the commissioners did not undertake to do by the proceeding and order of 1st April, 1833, referred to. What they attempted to do, as appears upon the face of the order, was “to survey, stake out, and record such width of highway as appears to be necessary for the public convenience.” This they hacino power to do. It was neither laying out a new road, nor ascertaining and describing an existing road not before described and recorded. In ascertaining and describing a road which has not been laid out, but has become a highway merely by public use for twenty years, the power of the highway commissioners is limited to ascertaining the boundaries of the road according to the actual use for the twenty years. They have no right, in the exercise of this power, to alter and change the boundaries, with refer once to present public convenience. (The People v. The Judges of Cortland County, 24 Wend. 491.)

It is true, as suggested by the appellants’ counsel, that the provision of the act in question, in regard to encroachments, is not in terms confined to laid out highways, as in the revised statutes, but extends to every case of a highway encroached upon. The provisions of section eighty-five of the act, however, clearly contemplate the case of a highway, the boundaries of which have been in some way fixed and determined beforehand, as the order must describe the width of the highway and the extent of the encroachment and the place where it exists. This, obviously, could never be done unless the highway had been either laid out, or its boundaries ascertained and described. That had not been done in this case. The order of April 1, 1833, was clearly a nullity, and no foundation had been laid on which proceedings of this kind could be based. In addition to all this, the line on the defendant’s side of the highway, which was attempted to be established by that survey and order, for the public convenience, went through buildings and yards, in entire disregard of the provisions of the act. There was no foundation for the action, and the judgment should be affirmed.'

Wright, Davies, Ingraham and Hogeboom, JJ., were also for affirmance.

Denio, Ch. J.

This was not a case in whicn it was proper to take the determination from the jury by a peremptory direction to give a verdict for the plaintiffs, subject to the opinion of the general term, unless the decision depended wholly upon the documentary evidence produced by the plaintiffs. If there was any disputed question of fact to be determined, such a direction could not legally be given, and it would be a mistake for which the judgment would have to be reversed. (Cobb v. Cornish, 16 N. Y. R. 602 Gilbert v Beach, id. 606;) and see Manning v. Monaghan (23 id. 539), and Clear v. McPherson, therein referred to. If, however, the commissioners’ order, and other written evidence, showed that the road in question was not such a highway as the statutory provisions respecting encroachments would apply to, the plaintiffs ought to have been non-suited. The sending of the case to the general term, after a large amount of written and oral testimony had been given, without any determination as to its effect in law or fact, was not strictly regular, but if the case is such that the plaintiffs could not possibly recover, whatever view might be taken of the paroi evidence, we ought not to reverse the judgment; for on that assumption it would be plain that the plaintiffs could never prevail in the action, and another trial would be a useless proceeding, and produce nothing but unnecessary expense. The plaintiffs appear to have claimed the road to be a highway by force of the record made in 1833, and also on account of its having been used as a highway for a long period of time. The provision in the Long Island act on the subject of highways, made such by user, is as follows: “All pub lie highways now in use, heretofore laid out and allowed by any law of this state, of which a record shall have been made in the office of the clerk of the county or town, and all road's not recorded which have been used as public highways for twenty years or more preceding the twenty-first day of March, 1797, and which shall have been worked and used as such for the last six years, shall- be deemed public highways, but may be altered in conformity to the provisions of this act.” (Laws of 1830, chap. 56, § 82.) By a provision of the first section of the act, unrecorded roads having the characteristics of user above mentioned, are to be “ ascertained, described and entered of record in the town clerk’s office,” by the commissioners of highways, and their order for that purpose is made appeal-able to the judges of the county court. (^ 66.) ■ There are several objections to the plaintiffs’ availing themselves of the record of this road made in the year 1833. In the first place, the certificate of the jury who were called upon to pass upon the question of encroachment, states that they found the fact of encroachment, “ without determining the validity of the record of said highway.” This is equivalent to saying that they disregarded that record in ascertaining the existence and boundary of the street. They no doubt acted upon the evidence of user, and they considered that the passage was a highway, according to the provisions of the eighty-second section of the act. The other objections arise out of the fact that the lines as fixed by the record infringed upon a dwelling-house of long-standing, and upon several other buildings and enclosures, which seem never to have been a part of the old road. I am not of opinion that the commissioners are obliged, in acting under this power, to ascertain and describe an old road, to conform precisely to the traveled track, especially when its boundaries are crooked and irregular, or obscure, as was the case here. .They have, I think, some kind of authority, which is conferred upon them in the provision respecting encroachments, to give the road the course and width originally intended, where the actual user fairly evinces such intention, and where it can be done without interfering with orchards or gardens of ten years’ standing, or with buildings, fixtures or erections, for the purposes of trade or manufacture, or yards necessary to the use and enjoyment thereof. These they are forbidden to touch in laying out a new road without the consent of the. owner (§ 45), and there is good'reason why a like prohibition should apply where they are executing a more limited power. The evidence tended strongly, if not conclusively, to show that these limitations had not been observed in the present instance. (See The People v. The Judges of Cortland County, 24 Wend. 491,) The supreme court was, therefore, right in laying out of view the act of recording pursuant to the order of 1833; and the only question is, therefore, whether proceedings as for an encroachment can be taken where the highway has never been laid out by .public authority, and where it has not been ascertained, described, or entered of record pursuant to the provisions on that subject to which I have referred. If we could look into the evidence in this case to determine such a question, it would appear to me that the defendant’s fence complained of is an encroachment upon the general course of the street as thrown out for public use, and occasionally used at that point. He, no doubt, frequently encumbered it by his wood-piles and potato-holes, but as it was in a wide street, they did not ocQasion much inconvenience, or essentially affect the integrity of the road; and the evidence is positive that when the incumbrances did not exist, it was freely used by foot passengers. But the question is, whether a road which has become a highway by the statute prescription, but which has not been recorded, can be the subject of an encroachment within the statute on which these proceedings are founded. The mandate of the statute is that they shall be deemed public highways. The only one requisite mentioned is, that they shall have been used as public highways for twenty years prior to the date mentioned; and shall have been worked and used for the last six years. There is no condition expressed that they shall have been recorded. That would have been incongruous, for the provision in terms embraces “ all roads not recorded.” The direction to the commissioners to ascertain, describe, and record such roads is found in another part of the act. If a road having the characteristics of user mentioned in this - section is held not to be, a highway for the purpose of the remedy against encroachments, it would be. difficult to maintain that it is one for any purpose. If it may be encroached upon with impunity, it.may be fenced up; it could not be legally included in a road district, and no one could be compelled to perform highway labor upon it; what is called the law of the road would-not apply to it¡ and I do not see but that the owner of the soil might plow and cultivate it; and if it is not embraced in a conveyance, any person might appropriate it to his own use. It was not, I think, the intention of the legislature that such consequences should result from the nonperformance of a statutory direction. It is a familiar principle that many statutory provisions which ought to be observed do not entail upon their non-observance the nullity of the subject to which they relate, where the subject or proceeding can exist and have a certain beneficial effect, notwithstanding the omission. The provision is frequently considered directory merely, and not essential. The legislative policy is, that the public highway should be described in the local records, so that all persons should be advised of their, existence and limits, and so that the officers concerned in the administration should know the subject to which their duties relate. But when the legislature has declared that unrecorded roads possessing certain indicia of notoriety shall, notwithstanding the want of a record, be deemed public highways, all the general regulations of the common, law, and the statutes relating to highways, immediately apply themselves to the subject thus indicated.

The opinion of the supreme court, in the xpresent case, relies upon a former judgment of the same court in Doughty v. Brill (36 Barb. 488), which was decided under the general statutes of the state concerning highways. The provision there made respecting encroachments was, that “in every case where a highway shall have heen laid out, and the same shall have been encroached upon by fences,” &c., the commissioners may order them to be removed, and that a proceeding like that contained in the Long Island statute may be taken in case of refusal. Much stress was properly laid upon the expression that the highway should have been laid out. But whether that qualification was omitted in the section by design or by inadvertence, the circumstance that it is, in fact, omitted, obliges us to construe it as though there was no such qualification; certain other phraseology, common to both statutes, is also relied on in the case referred to. In both it is required that the fences or buildings should be removed, so that the highway may be of the width originally intended. Every highway, whether laid out by authority or existing by prescription, must have the attribute of width; and roads by prescription are based upon the presumption of an original grant or dedication. The word intention may be predicated of such roads, -as well as of those which are laid out by commissioners of highways. It seems to me the use of that term does not strengthen the argument; for there is a presumption that if it were designed to confine the remedy to roads laid out and recorded, a reference to the act of laying out, or to the record of the road, would have been used, rather than a vague reference to the intention. The verdict would apply equally to both descriptions of roads, but not with the same precision to a recorded road. The certiorari. brought to review the proceedings before the jury, if operative for-any purpose, stayed the process of which it formed a part; but when it came to be adjudged that the allegations of error were unfounded, and the certificate was affirmed, it was established that the defendant never had any legal excuse for resisting the order of the commissioners, or for neglecting to remove the encroachment which the. certificate had found to exist. By maintaining the encroachment, in the mean time he incurred the penalties demanded by the act.

If these suggestions should be concurred in by my brethren, the judgment appealed from will be reversed, and a new trial ordered.

ítuLLDsr, J., concurred with Denio, Ch. J. -Selden, J., did not vote.

Judgment affirmed.


author: Denio, Ch. J. Ingraham, J.

text:
    Reuben Goodale v. Henderson Tuttle.
    In an action brought to establish the right of the plaintiff to have an alleged stream of water, running, as claimed, over the land of both parties, to run and flow as it had been accustomed to do time out of mind, and to recover damages for an alleged obstruction of the stream made by the defendant on his own land, the judge found as facts that there never had been, since the plaintiff and defendant owned, co-terminous lots of land, any natural stream or channel of water which had been accustomed to flow over the lands of the parties; and that the defendant had not placed or maintained any obstruction to the flow of water in any such natural stream.

      Held, that a judgment in favor of the defendant, dismissing the complaint, was properly directed to be entered.
    A judgment for the plaintiff, in an action brought in a justices court “for obstructing the passage ofwatyr over the defendant’s lot,” no such claim as the existence of a water course being referred to in the complaint, will not estop the defendant from denying the existence of an alleged watercourse over the land of both parties, in a subsequent action brought by the same plaintiff against" him to establish the right of the plaintiff to have an alleged stream of water, running, as claimed, over the plaintiff's and defendant's lots, continue to run and flow as it had been accustomed to do, and to recover damages for an obstruction.
    The principles which apply to the obstruction of running streams do not govern in the case of waters running under the soil.
    One is not obliged to excavate ditches, or construct sewers, on his own land, for the purpose of draining the low or marshy lands of an adjoining proprietor. Per Denio, Ch. J.
    And in respect to the running off of surface water, caused by rain or snow, there is no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil for its amelioration and his own advantage, because his neighbor’s land is so situated as to be incommoded by it. Per Dknio, Ch. J.
    A recovery upon no title -alleged, but which is based wholly upon a misunderstanding of the law, though it will be binding in the particular case, will not estop a party from asserting any right of which he can avail himself, in a subsequent litigation.

      Appeal from an order of the Supreme Court.

    The actidn was brought in November, 1857. Its object was to establish the right of the plaintiff to have an alleged stream of water, running, as claimed, over the plaintiff’s and the defendant’s lots of land in the village of Water-town, continue to run and flow as it had been accustomed to do time out of mind, and to recover damages for the alleged obstruction of the stream made-by the defendant on his own land, in May preceding the commencement of tlois suit, by means of which the cellars of certain tenements on the plaintiff’s land had been filled with water, and otherwise injured. The answer was a denial of-the complaint, and the statement of certain matters by way of defence. The case was.tried at the Jefferson circuit, before Mi-. Justice Bacon, without a jury. The justice found, as a matter of fact, that there never had been, since the plaintiff and defendant owned co-terminous lots of land, any natural stream or channel of water, which had been accustomed to flow over the lands of the parties, and that the defendant had not placed of maintained any obstruction to the flow of water in any such natural stream. He accordingly directed a judgment in favor of the defendant, dismissing the complaint, but without cqsts. At the end of the case there is a statement that the justice held and decided that a certain judgment, and a certain award of arbitrators which were given in evidence on the trial, and which are more particularly mentioned in the opinion, did not estop the defendant from denying the existence of the alleged water-course, though he held the evidence of those determinations competent and admissible to be considered in determining the issue between the parties. The plaintiff appealed to the general term, where the judgment rendered before Justice Bacon was reversed and a new trial ordered. The defendant appealed from that order, giving the usual stipulation. The case was submitted on printed briefs.

      Winslow & Bigelow, for the appellant.

      M. H. Merwin, for the respondent.
   Denio, Ch. J.

The finding of facts by Mr. Justice Bacon must of course be conclusive, as to the existence of the alleged water-course, unless some error was committed in the course of the trial. But the judge refused to give the effect to a certain judgment, and to the award of certain arbitrators, which is claimed for them by the plaintiff. And this raises the only point which we can review upon this appeal. In order to determine the effect of these adjudications, it will be necessary to look into the evidence with some attention. The parties were the owners of adjoining lots, the defendant’s lot lying north of that of the plaintiff The plaintiff formerly owned both lots, but sold the northerly one to the defendant about the year 1850. The shape of the surface of the land showed a slight descent northerly, which would lead the water to flow from the plaintiff’s lot on to and over the defendant’s. The case made by the plaintiff, and proved mainly by his own testimony as a witness, was that many years ago there was a spring on the plaintiff’s land, from "which there issued what the witness called a runlet of water, running through the plaintiff’s lot on to and through the lot after-wards purchased by the . defendant. About eighteen or twenty years before the trial, and about ten years before the defendant purchased his lot, the plaintiff filled up that spring with earth, and then and subsequently levelled the ground by plowing and scraping the earth into it, leaving, however, a depression on the surface to carry off the surface water. ' About two years after the defendant’s purchase .the plaintiff constructed an underground' drain or sewer from the place where the spring had been, running towards the defendant’s lot, having the previous year constructed five small houses near the site of the spring, the foundations and cellars of which were drained by this sewer. The original surface at that place was raised by the plaintiff about two feet by the drawing on of earth, and the bottom of the sewer rested on the original surface. When the defendant purchased his lot this 4j.’ain had been continued about halfway from, its commencement to the defendant’s land, and after the construction of the fences the plaintiff extended it to the defendant’s line. Before this extension, water was discharged from the then lower end of the drain and ran over the surface of the land, which had been somewhat raised by being filled in. After the defendant purchased he drew earth upon his lot, raising the original surface, which was low and marshy, and he constructed a drain or ditch across it for his own benefit, which operated as a further continuation of the plaintiff’s drain, although it was not so low. The plaintiff’s grievance was that the defendant had suffered this drain on his own land to become, from time to time, obstructed and filled up, the alleged effect of which was to flood the cellars of the plaintiff, by means of the water which was thus prevented from freely running off. And the immediate injury for which this action was brought was the obstruction of the defendant’s ditch in the month of May preceding the commencement of the suit, which, as it was claimed, caused the flooding of the cellars of the plaintiff’s houses.

The defendant’s evidence tended to show that there was never any water-course or channel running from the spring except in wet weather, and it was proved that the defendant excavated the ditch on his lot before the plaintiff constructed his drain. The evidence was clear and uncontradicted that there had not been, since the defendant purchased his lot, nor for several years before, any appearance of a spring, or of a water-course, upon the lots or either of them.

The evidence of the adjudications upon which the plaintiff relied was as follows: S. Earnham, who was a justice of the peace of Watertown, testified that the plaintiff sued the defendant by summons before him, on the 27th of August, 1853. That issue was joined in the suit, and /that a trial by jury was had on the first day of December following, when the plaintiff recovered a verdict for $6.00— for which, and the costs, judgment was rendered. The complaint was “for obstructing the passage of water over defendant’s lot on John street, in the village of Watertown, whereby plaintiff sustained damage $10.” The defendant answered, “ denying complaint, and says he has not obstructed or hindered the passage of water over the plain tiff’s land, on John street, in Watertown; and if any obstruction existed it was caused by the plaintiff’s back-house setting over said drain.” The justice testified that the subject of the action*and trial “ was the same subject matter testified to here by the plaintiff.” Tñe following year, 1854, the plaintiff again sued the defendant, before N. Emerson, another justice of the peace, and the complaint was according to his testimony, “ for obstructing a natural watercourse,” on the same premises as in the present suit. The defendant denied the complaint; and then “the whole matter ” was, by the agreement of the parties, referred to three persons, namely: Justices Farnham and Emerson and one Hoyt: who made an award in writing, which was given in evidence, in the 'following words: “The decision is, that Tuttle (the defendant) shall lower the drain six inches from the mouth of Goodale’s (the plaintiff’s) drain fifteen feet northerly, and permanently secure and cover the same, and on a gradual descent from there to his northerly line; and that he shall pay the costs of the said proceeding at the office of Esq. Emerson, and the costs of reference*; and that Tuttle make the repairs during the present week. Dated April 25, 1854.” This was signed by the three arbitrators. The submission was verbal; one of the arbitrators testified that it was “ of what the defendant should do to put an end to the suit before Emerson.” The pertinency and effect of this evidence must be determined by a reference to the point in issue in this suit. The complaint alleges “ that there has flowed, over and.across the premises of the plaintiff and of the defendant, for a period of time whereof the memory of man runneth not to the contrary, a stream of water, formed by á spring or springs, and into which was accustomed to flow the water from the land on either side of said stream.” It then sets out the plaintiff’s right by law to the continued running of the stream “ in its accustomed channel/” of its use to the plaintiff for the purpose of drainage; and the obstructing of said stream by the defendant, “by plowing the earth on each side of it into the bed thereof.” The complaint is met by a general denial. The action was the usual one for obstructing a water-course. The paroi evidence, furnished principally by the plaintiff’s own oath, not only failed to show the existence of such a stream, but showed positively that there was not any such at any time after the parties owned adjoining lots, or for many years before, and the finding of the justice is in accordance with that state of the proof. In fact, if a water-course ever existed there, which I think is doubtful, it had been obliterated and destroyed by the plaintiff himself, long before the defendant owned any land in the vicinity of it. The question then is, whether the judgment of the justice of the peace estops the defendant from asserting and relying upon the facts as they really exist. I think it does not. Mo such claim as the existence of a water-course is referred to in the complaint before the justice. ■ That is simply for obstructing the passage of water over the defendant’s lot. ■ It does not say the water of a stream or water-course. It may have been surface water, or water percolating through the soil under the surface of the earth. It is clear enough, from the evidence, that there was, at times, a flow of water through both these meadows, as there always is in a marshy soil, where the land is situated on a declivity. As there was nothing in the. pleadings, so there was nothing in the evidence, so far as we are made acquainted with it,-touching the existence of a water-course. All that we have on that point is the testimony of the justice, who says that the “subject of the action and trial was the same subject matter testified here by the plaintiff.” Now, the plaintiff did not pretend, in his testimony in the present case, that there was any water-course above ground on his lot in 1853, or for some ten years previous to that time; but he admitted that he himself had obliterated the source and channel of the supposed stream long before. He did, no doubt, claim that the defendant owed him the duty of maintaining a drain on his own lot, so that the superabundant water percolating through the pores of the earth would run off. In other words, he claimed that the defendant should co-operate with him in draining his premises. Whether that claim was well founded or not, is not now the question. Supposing that to have been his claim before the justice, he succeeded in convincing the jury of its validity, which was sufficient for his purpose, at that time. But, the adjudication in favor of that claim has not the slightest tendency to prove the existence of .the alleged water-course at the time the defendant in this action is charged with obstructing it. The complaint in the second justice’s suit, brought in 1854, is more to the purpose. If the justice was accurate in his memory, for the pleading seems to have been oral, the complaint was for obstructing a natural watercourse. It is not quite clear that a stream running above ground was intended, but such may have been the case. But that suit, whatever the issue may have been, was never tried, and it does not appear that the suit and the issue joined in it was submitted to arbitrators. The testimony of Mr. Emerson is that the whole matter by which I should understand the controversy between the parties, respecting the flowing of the plaintiff’s land,- was submitted. The testimony of Mr. Farnham, another of the arbitrators, does not show that the suit, or the issue joined in it, were submitted. The submission, as he understood it, was as to what the defendant should do to put an end to the suit. The counsel showed conclusively that it was not the issue in the suit which was submitted. It directed the defendant to do certain things respecting his drain, and not to pay damages for the alleged obstruction of a water-course, which was the only judgment the plaintiff could have had in the suit. These considerations have convinced me that the defendant' was not estopped in the present action from relying upon the undisputed fact that there was not any such water-course as he was charged with obstructing. Mr. Justice Baqoit was, therefore, right in disallowing the effect claimed for the judgment and award, I am of opinion, moreover, that the plaintiff was not entitled to recover for a supposed wrong of the defendant in not joining with the plaintiff in the laudable effort of reclaiming these wet-grounds. With all the latitude which now obtains upon the subject of variance in pleadings, such a course of action as last suggested could not be considered as embraced in a complaint for obstructing a water-course. It is so wide a departure from any idea we can have of such an action, that we must consider the trial to have presented a failure of proof. Moreover, I do not think that there was any obligation resting on the defendant, so to use his premises adjoining those of the plaintiff, as to prevent the latter from being incommoded by the water existing in the marshy soil of his own lot. We have lately decided that-the principles which apply to the obstruction of running streams do not govern in the case of waters running under the soil. (Ellis v. Duncan, Court of Appeals, March Term, 1864); and see Acton v. Blundell (12 Mees. & Wels. 324); Greenleaf v. Francis (18 Pick. 117.) In these cases it was held that a liability did not attach to the act of one sinking a shaft on his own soil, by which the subterranean waters, which would otherwise have run under the plaintiff’s soil and have been useful to him, were cut off. A fortiori, one is not obliged to excavate ditches or construct sewers on his own land for the purpose' of draining the low or marshy lands of an adjoining proprietor. (And in respect to the running off of surface water caused by rain or snow, If know of no principle which will prevent the owner of land from filling up the wet and marshy places on his own soilji for its amelioration and his own advantage, because his neighbor's land is so situated as to be incommoded by it. ¡I Such a doctrine would militate against the well-settled rule that the owner of land has full dominion over the whole space above and below the surface, j The justice’s judgment, and the award, though they may estop the defendant from controverting the facts upon which those determinations proceeded, cannot have the effect of changing settled rules of law. If, for instance, the plaintiff had set up a title by prescription, or by grant, or by any valid contract, to have the defendant maintain a sewer over his lot for the benefit of the plaintiff’s lot, the judgment in his favor in that suit, supposing the court to have had competent jurisdiction, would have established his right for all future time, and the clearest evidence of the non-existence of the supposed title would not have avoided the estoppel; but a recovery upon no title alleged, but which was based wholly upon a misunderstanding of the law, though it would be binding in the particular case, would not estop any right which could be availed of in a subsequent litigation.

I think the order appealed from ought to be reversed, and judgment absolute be rendered in favor of the defendant, according to. the determination of Mr. Justice Bacon.

Ingraham, J.

The finding of the judge on the, trial of this case was that the plaintiff had failed to show that at the time of the defendant’s purchase of the premises where the supposed stream was obstructed, there was any natural "stream or channel of water that had been accustomed to flow over and across the land, or that the plaintiff had a right to discharge the water from- his premises, across the defendant’s premises.

This finding upon a question of fact, in this court, would be conclusive, but not so in the general term of the supreme court. They may reverse a judgment and order a new trial on the ground that the verdict is against the evidence, or against the weight of evidence, or for any mistake as to facts. And where a judgment is reversed without assigning any cause for such reversal, it is difficult to say whether the judgment was so reversed for errors of fact or errors of law.

It is extremely difficult to suppose that the general term reversed this judgment for errors of fact, bic one, from the evidence as given in the case, could suppose the contrary to have been proven. The plaintiff stated that when he bought the land, about 1838, there was a spring on the land, which ran across the land owned by the defendant; that he filled up the spring a year after he bought it; that he built a drain from his house through his garden, and in 1852 continued the drain to the defendant’s line, and drained the cellars of houses he had built, and during this period he had been filling up his own land higher than his neighbor’s. Under such evidence I am at a loss to see how any finding that a natural stream existed there at the time of the sale to the defendant could be sustained. On the contrary, I think the evidence clearly establishes the contrary finding, and that the judge was right on the trial, as to the fact.

Upon the trial the plaintiff relied upon the previous trial before a justice, and upon an arbitration between the parties, which he claimed related to the subject matter of this trial, and was conclusive between them. The judge, at the trial, found that the defendant was not estopped thereby from denying the existence of the water-course, and that the evidence of decisions in those cases was not conclusive f upon the parties in this casé. In this ruling there was no error. The complaint set forth that there had flowed over and across the plaintiff’s premises a stream of water formed by springs, from time immemorial, and had been accustomed to flow so without obstruction; that the plaintiff had drained the water from his cellar into that stream, and that the defendant, in May, 1857, had obstructed the stream by plowing earth into it, and prevented thereby the accustomed flow of the water, and had caused the waters of the stream to overflow the plaintiff’s land. And he asked to have a judgment of the court that he was entitled to have the stream flow across the defendant’s lands unobstructed.

On the trial before Farnham, a justice of the peace, in-1853, the complaint was for obstructing the passage of water over the defendant’s lot. Whether such water came from a spring, or whether it was a right that existed immemorially, or when the obstruction was put there, was not stated. So the matter submitted to arbitration, which was commenced before Emerson, although the complaint was as to a natural water-course, yet after’ the case was submitted to the arbitrators, the decision was made solely as to the drain and its depth and dimensions. ¡Neither of these decisions can be said to establish the existence of a watercourse running over the defendant’s land from time immemo - rial. Certainly, neither of them established that in 1857 the defendant obstructed this drain; or that at the time of that action he maintained any obstruction to the flow of water over the premises. More especially should the defendant be allowed to explain the plaintiff’s evidence, given by himself, on which he relied to establish the existence of such rights; and still more, should he not be concluded by a previous trial in regard to a drain, when the plaintiff himself proved that he had. destroyed such running stream, if it ever existed, by filling it up, more than twenty years previous thereto. If the action had been for obstrupting a drain across the defendant’s premises, from the plaintiffs land, the evidence of the former trials might have been sufficient to establish the plaintiff’s right to maintain the drain, but they would have been evidence of nothing else; but they certainly were not sufficient to conclude the defend- • ant as to the existence of a running stream from the plaintiff’s land over, not through, the defendant’s land, so as to give the plaintiff a right forever to maintain such stream running across the same land.

It appears to me that the decision at the trial was right, and that the order of the general term, granting a new trial, was erroneous. As th^ counsel have not claimed that the order of the general term was not made for any error of fact, we, should not avoid doing justice to the parties by terminating litigation, when satisfied that the cause has b,een rightly decided. The order granting a new trial, if on the ground that the judgment is against the weight of evidence, should show that to be the cause. If it does not, and there appears in the case no reason for supposing the decision was for such a cause, we are justified in concluding that the general term decision was made upon the grounds on which the counsel attempt to sustain it in this court.

The order of the general term should be reversed, and the judgment of the special term affirmed.

All the judges concurred, except- Mullin’, J., who had been counsel in the case, and therefore did not sit.

Judgment reversed.