text:
    GEORGE E. DODGE, Respondent, v. JOHN L. COLBY, Appellant.

      Action for trespass on lands in another State is not maintainable Tw'e — action for a slander of title — malice must be alleged, —joinder of causes of action.

    In tlie first and second causes of action set forth in the complaint in this action, it was alleged that the defendant, and other persons acting with or under him, cut timber and removed timber and turpentine from lands in Georgia belonging to the plaintiff.

      Beld, that the action being for trespasses upon lands situated in another State, could not be maintained in the courts of this State.

      Gragin v. Lovell (88 N. Y., 258) followed.
    That the action could not be sustained, as having been brought to recover the value of the timber and turpentine, as so much property belonging to the plaintiff which had been converted after its severance, as such conversion and appropriation were merely acts by which the trespass itself was made complete and its fruits diverted to the use of the persons committing the wrongs upon the land.
    The third cause of action set forth in the complaint charged that the defendant and others acting under his authority had both publicly and privately denied the plaintiff’s title to the land.

      Held, that the complaint was defective in that it failed to allege that the denial of the plaintiff’s title was maliciously made.

      Meld, further, that as causes of action for trespass and slander could not be joined, the complaint was demurrable for a misjoinder of causes of action.

      Appeal from an interlocutory judgment overruling a demurrer-interposed herein to the plaintiff’s complaint.

      Stephen B. Brague, for the appellant.

      John, E. Parsons, for the respondent.
   Daniels, J.:

The plaintiff has brought this action as the owner of about 300,000 acres of land situated in the State of Georgia, to recover damages for timber and turpentine taken from the land, and also-for the slander of his title by the defendant. The complaint contains two causes of action for the timber and turpentine. To present the first of these causes of action it has been alleged that the defendant and others acting with him, “ have caused various persons to cut timber and to take turpentine, the property of the plaintiff, from the same.” The second cause of action has been similarly stated. For that purpose it has been alleged that the defendant and others for whom he was acting represented to lawless and irresponsible persons that they would protect such persons ‘‘ in trespassing upon said lands and removing turpentine and timber, the property of the plaintiff from the same.” And that various persons, thus encouraged and protected by the defendant and by his said agents, and relying upon their assurance and protection, and directly instigated by them, have taken turpentine and timber from the said lands, the property of the plaintiff of great value.” By these allegations the facts upon which the plaintiffs right to recover has been made-to depend, were trespasses upon real estate situated in the State of Georgia, and for such trespasses no action can be maintained in the courts of this State. (Cragin v. Lovell, 88 N. Y., 258.)

An effort has been made to distinguish this case from that authority, upon the fact that the plaintiff in this action claims to recover the value of the timber and turpentine as so much property belonging to him, which has been converted by the persons who removed it from the land, under the authority, or at the instigation of the defendant. But the removal of the timber and turpentine, and its appropriation to the use of the persons taking it, will not entitle the plaintiff to maintain this action in this State,, for the conversion and appropriation were merely acts by which the ■trespass itself was made complete, and its fruits diverted to the use of the persons committing these wrongs upon the land. A similar proposition was presented in American Union Telegraph Company v. Middleton (80 N. Y., 408), but it failed to receive the sanction ■of the court. And it was held that the acts of trespass themselves •could not be separated from those of the removal and appropriation -of the property in such a manner as to allow an action to be maintained for the value of the property actually converted. The case is directly applicable in this respect to the one now under consideration, and although it may conflict in this conclusion with the ■decisions cited from the reports of the State of Pennsylvania, it must still be held to be controlling as to its disposition. It has been urged that a different conclusion was arrived at in Newman v. Goddard (3 Hun, 70), but that is a mistaken view of that case, for the property for which it was held a recovery might there be had was no part of the freehold, but it was personal property, in no manner whatever connected with the premises from which it was taken. This case cannot be brought within the principle upon which that proceeded, but it is to be controlled by the authorities previously mentioned. Neither of these subdivisions of the complaint present a cause of action within the jurisdiction of this court, ■and that part of the demurrer by which this point has been raised was therefore well taken.

The residue of the complaint, containing what has been relied upon as a third cause of action, consists in brief of the charge that the defendant, and others acting under his authority, had both publicly and privately denied the plaintiff’s title to this land. But in no part of the complaint relating to this cause of action has it been .alleged that this denial of the plaintiff’s title was maliciously made, and that is an essential fact, the existence of which has been required to sustain an action for the slander of a title. (Like v. McKinstry, 41 Barb., 186.) But it appears further from the allegations contained in this subdivision of the complaint, that the defendant and those acting with him claimed an adverse title to the property to the plaintiff, and stated that they had been confirmed in the propriety of that claim by the unanimous decision of four able legal gentlemen who had investigated the subject, and concluded that the plaintiff was not the owner of the land. It is entirely manifest from the alleged statements contained in tbe complaint, that the-defendant claimed to be interested as owner in this property. And where a claim may be made of that description, together with the-assertion that the plaintiff is not the owner of the property, an action of slander cannot he maintained for the mere making of the assertion. (Smith v. Spooner, 3 Taunt., 246.) And this case, as-well as the preceding authority, proceeded further uj)on the principle that the words by which the title in question may have been-assailed must be shown to have been spoken maliciously. Indeed that is essential in all actions of slander, and before such proof can regularly be given, the complaint itself must contain an allegation that such was the fact. In no part of this complaint, therefore, was-any cause of action disclosed against the defendant.

But if it should be held that each division of the complaint contained a cause of action, then it was subject to the further objection-mentioned in the demurrer that the causes of action were improperly joined, for by section 484 of the Code of Civil Procedure, an action of slander cannot be joined with an action for injuries to real property or for injuries to personal property, but the causes of action which may be regularly united in the same complaint must belong to one of the subdivisions contained in that section. The judgment overruling the demurrer was erroneous and it should be reversed, and judgment ordered for the defendant upon the demurrer, with leave to the plaintiff to amend within the usual time, on the payment of costs.

Beady, P. J., concurred.

Present — Beady, P. J., and DaNiels, J.

Judgment reversed and judgment ordered for defendant on demurrer, with leave to amend in usual time, on payment of -costs.


source: Caselaw Access Project

author: Beady,' J.:

license: Public Domain

text:
    JEAN B. M. DUCHE and CLAUDE A. S. DUCHE, Respondents, v. CHARLES HENRY WILSON and Others, Appellants.

      Damages — exemplary damages cannot be given in an action for a bi'each of contract— the motives for its breatfi are immaterial.

    In an action to recover damages for a breach, of a written contract to transport cattle, the complaint alleged that the breach of the contract was willful, deliberate and without just cause, and demanded, in addition to the amount of damages alleged to have been actually sustained, a further sum of $3,000 as and for exemplary, punitive and incidental damages. During the trial the . theories of bad faith on the part of the defendants were presented to the jury and were the subject of comment by the presiding justice. The court refused to charge, as requested by the defendants’ counsel, that it was immaterial from what motives the defendants acted in neglecting or refusing to transport plaintiffs’ cattle; and that, even if the defendants had refused to transport the cattle solely from malicious motives, the plaintiffs could not, in this action, recover any additional sum for that reason. ^—

      Held, that it was error to refuse so to charge.
    That the error was not cured by the fact that the court had charged, as requested by the defendants’ counsel, that exemplary and punitive damages could not be given in the action, as no explanation was made of what was meant by exemplary or punitive damages.
    Appeal from a judgment in favor of the plaintiffs, entered on a verdict after a trial at the circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      James Thomson, for the appellants.

      Won. Mitchell, Jr., for the respondents.
   Beady,' J.:

This action was brought to recover damages occasioned by a breach of a written contract entered into between the parties for the transportation of 150 head of live cattle, on 'the steamship Yirago, from New York to Deptford, London, England. The complaint contained a charge that the breach of the contract by the' defendants was willful, deliberate and without iust cause; and averred as damages for the failure to carry the cattle a loss of $2,380, and demanded $3,000 as and for exemplary, ¡punitive amd incidental damages, in addition to the loss actually sustained by them, and the profits they would have made.

During the trial the theories ■ of bad faith, on the part of the defendants, was presented to the jury and was the subject of comment by the learned justice presiding at the trial, who upon that subject said : “You have heard from the witnesses, on the part of the defendant, that the reason was that the vessel was so low down in the water from having such a large quantity of coal that they could not be taken on board. They ask yon to believe the vessel being here in New York, with a captain and other persons knowing its character, and what she would naturally carry, that they did not know what was the reason of her being lower down in the water than ordinary care would have put her. It is for you to say upon that point what you believe.” Upon the conclusion of the charge, which was quite brief, the counsel for the defendants requested the court to charge that it was immaterial from what motives the defendants acted in neglecting or refusing to transport plaintiff’s cattle. The court refused so to charge, and defendants’ counsel duly excepted to such refusal. The court was then further asked to charge that even if the defendants had refused to transport said cattle solely from malicious motives, plaintiffs could not in this action recover any additional sum for that reason. The court declined so to charge, and defendants’ counsel duly excepted.

We have already seen that the court, in charging the jury, drew their attention to the excuse offered by the defendants, and left the subject for their consideration in connection with the whole case.

There can be no doubt that in an action upon contract alleged to have been broken the motives which induced the breach, whether malicious or otherwise (except, perhaps, in an action for a breach of promise of marriage), are wholly immaterial and not admissible. (Mayne on Damages, § 45 ; Sedgwick on Damages, §§ 437, 455.) And, therefore, the jury should have been instructed in such a way as to impress upon them the rule, fully and thoroughly, that in this action the only damages to be recovered were those actually sustained by the plaintiffs, to be established by proof, and were not to be augmented to any extent or any amount by the motives which induced tbe defendants to violate their contract, even assuming that such violation was tlie result of malicious design.

The respondents think, notwithstanding these • refusals of the ■court to charge as requested, that the defendants suffered no injury because one of their requests, namely, that exemplary or punitive ■damages could not be given in the action, was charged. But it must be said that there was no explanation made of what was meant by exemplary or punitive damages in connection with the •charge, and no explanation of those terms was asked by the plaintiffs’ counsel. As the case, therefore, was presented to the jury, they were left to understand that it was not immaterial from what motives the defendants acted in neglecting or refusing to transport •the plaintiffs’ cattle, and that the converse of this proposition, ■stated by the defendants, must prevail with them, namely, even if the defendants had refused to transport the cattle solely from malicious motives, the plaintiff could not recover in the action an additional sum for that reason, although they were instructed that •exemplary or punitive damages could not be recovered in the action, but without, as already suggested, any explanation of what was meant by those terms. This left the jurors to assume that the motives of the defendants could be considered, and more particularly as the learned judge had charged upon that subject; and it had been a theory presented and carried on in the case as a part of its elements. As said in the case of Stokes v. The People (53 N. Y., 184): “ It is impossible that we should know whether these instructions effectually eradicated from the minds of the jury the ■erroneous impression calculated to be produced by the previous portion of the charge, and we cannot, therefore, pronounce as a conclusion of law, that it had no influence upon the verdict. Whether, "under a proper charge, the jury would have come to the same result It is not within our province to decide. The determination of the facts rests wholly with the jury. It is for the court to instruct them as to the law, and these instructions they are bound to follow. If materially erroneous, it is the imperative duty of the appellate .tribunal to grant a new trial.”

For the refusal of the judge to charge as requested, it becomes necessary to reverse this judgment and order a new trial, with costs to abide the event, without reference to any other of the numerous exceptions taken in the case, and which we do not feel called upon now to consider.

Ordered accordingly;, with costs to abide the event.

Davis, P. J\, and Daniels, <T., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Daotels, J.:

text:
    PATRICK MORRISON and JAMES LYONS, Plaintiffs, v. THE MENHADEN COMPANY, Defendant.

      Receiver of a corporation — power of the court to cure an omission to give notice to< the attorney general, by directing an order to be entered nunc pro tunc —property in custody of a United States Court is not subject to levy — a general judgment creditor of a corporation is not entitled to notice of amotion for the appointment of a receiver the/reof.

    On May 9, 1883, one Metzger recovered a judgment against the defendant, a corporation, and on the same day issued an execution thereon to the sheriff, who made a levy upon certain vessels belonging to the corporation, yhich were then in the custody of the marshal of the eastern district of New York under proceedings instituted for the enforcement of maritime demands, under which proceedings the vessels were subsequently sold and a surplus paid into-the United States District Court.
    In this action, brought by the above named plaintiffs under section 1784 of the Code of Civil Procedure to sequestrate the property of the defendant, one Hobbs was appointed a temporary receiver by an order made on May 31, 1883, and on June 11, 1883, upon the default of the company, a final decree was made-appointing him a permanent^ receiver thereof. No notice of these proceedings was given to the attorney general, as required by chapter 378 of 1883, which took effect Mav H, 1883. In April, 1884, upon due notice being given, to the attorney general, an order was entered providing for Hobbs’ appoint ment as receiver nunc pro tunc on the notice so served.
    Upon a motion by Metzger to vacate the order appointing the receiver:

      Held, that without deciding whether or not a jurisdictional defect could be cured' by an amendatory order, that the order made in this case had the effect from its date of making valid the appointment of the receiver.
    That as the vessels were within the jurisdiction and authority of the United States District Court at the time the execution was issued, they were not the-subject of seizure and levy; and that as Metzger acquired no lien thereon he-was not entitled to notice of the motion for the appointment of a receiver.
    Appeal by Moses Metzger, from an order denying a motion to-vacate or set aside the appointment of a receiver of the property of the defendant.

      Metzger obtained a judgment against tlie said corporation on the-9th day of May, 1883, and on the same day issued execution against the property of The Menhaden Company to the sheriff of the-county of New York, who thereafter made a levy on certain property of said corporation, consisting of certain steam vessels or steam fishing boats. Subsequently thereto and on the 21st day of May, 1883, the plaintiffs obtained an order in this action, brought under-section 1784 of the Code of Civil Procedure, appointing one Edward H. Hobbs as temporary receiver, and thereafter, and on the 11th day of June, 1883, the plaintiffs entered judgment herein by default,, making the said temporary receiver permanent; no notice of such application either for temporary or permanent receiver was ever served upon Metzger, the appellant and judgment creditor, and no-notice of the application for the appointment of the receiver or of the dissolution of said corporation, or for the distribution of its-assets was ever given to the attorney general of this State, as required by chapter 378 of the-Laws of 1883, which took effect May 11, 1883. About one year after the appointment of the receiver, and the judgment making said receiver permanent, to wit, on April 7, 1884, an order to show cause was granted, requiring, the attorney general to show cause, if any, why the proceedings and the order appointing the receiver and said alleged judgment by default should not be confirmed and entered nunc pro tunc, and on the 23d day of April, 1884, an order purporting to confirm the-previous proceedings in said action was made and entered. No-notice of the original application for the appointment of the receiver or for the subsequent orders obtained nxmc pro tunc, confirming said proceedings was ever served on the appellant or his-attorney.

      Bernard Metzger, for Moses Metzger, appellant.

      Merritt E. Hamlo/nd, for the receiver of defendant.
   Daotels, J.:

The application was made on the ground that the requirements of chapter 378 of the Laws of 1883, had not been complied with in the proceedings in which the receiver was appointed. But it appeared that notice of the application for the appointment of the receiver, together with a copy of the judgment, were subsequently .served upon the attorney general, and an order was thereupon made by the court providing nunc pro tuno for his appointment on the notice so served. It is not necessary to hold that such an order •could be regularly made, where its object is not to correct a mere irregularity, but to supply a jurisdictional defect, for this order from the time when it was made, had the effect of making a valid .appointment of the receiver, and from that time certainly authorizing him to exercise his functions as such an officer.

That was done before any proceedings were taken on behalf of the applicant to set aside the appointment of the receiver. It has been supposed that this order was without effect as long as no notice of •the application was given to this judgment creditor or his attorney. But at the time when the judgment of the applicant was recovered against the defendant, and his execution was issued upon it, the property of the company, which, according to the affidavits, consisted of vessels, was in the custody of the marshal of the eastern district of New York, under proceedings taken for the enforcement of maritime demands, and under those proceedings the vessels were .sold and a surplus realized which was paid into the United States District Court, and by its order afterwards paid over to the receiver. This custody of the property of the defendant prevented its seizure under the execution of the applicant. It was wholly within the jurisdiction and authority of the United States District Court, and was not the subject of seizure and levy under his execution. (Freeman v. Howe, 24 How. [U. S.], 451; The Lottawanna, 20 Wall., 201; Covell v. Heyman, 111 U. S., 176.) The applicant accordingly •acquired no lien upon or interest in the defendant’s property entitling him to notice of the application to legalize and continue the receivership. As a mere judgment creditor having no lien upon the •defendant’s property notice of the application was not required to be given to him, and that was the extent of his relation to the defendant’s property. He has not been in a condition to question the legality or regularity under which the receiver was appointed. Neither did he, in any form, acquire any such interest in the debtor’s property as entitled him to payment out of it, or out of its proceeds, in preference to the rights of other creditors. His remedy was not an application to vacate the order appointing the receiver, but it was that of an application for payment of bis demand according to its legal priority out of the proceeds of the defendant’s property, either while they were in the custody of the District Court, or after they passed into the possession of the receiver. (Krippendorf v. Hyde, 110 U. S., 276.)

The order was entirely correct and it should be affirmed, with ten. dollars costs besides the disbursements.

Davis, P. X, and Beady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Davis, P. J.;

text:
    MARY L. McKENNA, as Temporary Administratrix of JOHN P. O’NEIL, Respondent, v. THOMAS BOLGER, Appellant.

      JEvidence — when a party may testify to an extrinsic fact, which may tend to show that he has not had a certain personal transaction with a deceased person— Code of Civil Procedure, sec. 829.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict.
    Tbis action was brought to recover a sum alleged to have been agreed to be paid by the appellant to the decedent, John P. O’Neil, for his interest in a certain farm held and owned by the appellant and O’Neil, as tenants in common. The substance of the alleged agreement is, that on receiving title to the whole of the farm, through amicable proceedings to foreclose a mortgage then existing upon it, the appellant should pay O’Neil $1,666, being one-half of the sum originally-invested by O’Neil in the purchase of the farm. A foreclosure was had, it is claimed, under this agreement, at which the appellant purchased the farm and took title to the whole thereof, giving his individual bonds and mortgages in lieu of those previously existing, but afterwards refused to pay the price stipulated for O’Neil’s interest.
    The court at General Term said: “"We see no reason why such an agreement, when consummated by the actual sale and conveyance of the whole title, is not a valid one upon which an action can be maintained for the price agreed upon as for lands sold and conveyed at a purchaser’s request at a stipulated price. An agreement of purchase and sale reduced to writing, etc., is not at all necessary where an action is brought to recover, an agreed price for lands actually sold and conveyed, pursuant to an oral agreement, where the consideration remains unpaid. And that, in substance, was the alleged agreement in this case, except that the purchaser was to take the title through an amicable foreclosure to be procured -and consummated by the seller.
    “We have already determined this question on the demurrer to -the answer brought before us by appeal from the Special Term. .But questions as to the admissibility of evidence arose upon the trial of this case that call for consideration. This action was brought by O’Neil in his lifetime. On his decease the present plaintiff was substituted as his temporary administrator. The chief testimony in the case to support the alleged agreement was given by one Tobias, a lawyer, who was to some extent connected with O’Neil in business, and acted on his behalf in carrying out the agreement. He gave testimony tending to establish the agreement by conversations had in his office, and in his presence, between ■O’Neil and the appellant. The agreement was denied by the appellant in his answer; and for the purpose of contradicting or impairing the testimony of Tobias, the defendant sought to give testimony himself showing a condition of things inconsistent with the alleged making of such an agreement. With this view, amongst other things, he was asked the following questions :'
    “ ‘ Will you state to the jury what induced you to have the property foreclosed % ” This was objected to on the ground that it is a personal communication with the deceased. The objection was .sustained and an exception taken. The appellant was then asked : ‘ State the situation of the property at the time before the fore-•elosure suit as to the payment of interest and all that.’ The same ■objection and ruling were made and the same exception taken. ■
    “ The appellant claimed that the foreclosure was not made because •of any such agreement as the plaintiff alleged, but because of O’Neil’s neglect to pay interest on the mortgages and to keep up his part of the expense of carrying the property. These were ■extrinsic facts clearly competent to be proved as tending to maintain the defendant’s theory of the case. We see no reason why they could not be proved by his testimony. They were not of necessity personal transactions or communications had between the defendant and the deceased ; and if they turned out to be in whole or in part of that character, they could have been to such exti nt excluded when the fact appeared. In Pvnney v. Orth (88 N. Y., 447) it was held that a party is not precluded £ from testifying to extraneous facts or circumstances wliicb tend to show that a witness who has' testified affirmatively to such a transaction or communication has testified falsely, or that it is impossible that his statement can be true.’ (See, also, Lewis v. Merritt, 98 N. Y., 206.) The facts and circumstances, which the questions excluded were designed to call out, may perhaps have been such as to satisfy the jury that Tobias had not testified truly as to the making of the alleged agreement. And they were not necessarily within the inhibition of section 829 of the Code, and therefore the testimony should have been received and, so far as it appeared to be outside of the inhibition of that section, submitted to the consideration of the jury.
    “ The following questions were also asked the appellant and excluded under the same objection and exception : ‘ State whether or not you ever made any agreement with Mr. Tobias acting for Mr. O’Neil, O’Neil being absent, in relation to the purchase of O’Neil’s interest in such farm ? How many times were you in O’Neil’s office in relation to this transaction ? ’ The ruling as to these questions was erroneous. Tobias had given testimony tending to show that he had conversations with appellant on the subject of the alleged agreement when O’Neil was not present, in relation to the payment of the amount sued for.
    “ The defendant was not precluded from contradicting that testimony or from showing affirmatively how often he had been at O’Neil’s office, and whether or not there had been any agreement made between himself and Tobias in the absence of O’Neil. In Pinney v. Orth (ubi. sup.) the court said: £"We think that Mr. Orth, for instance, was competent to testify that he was not in the city of New York at the time referred to by the witness, or that the witness was at some other place, or that he never met the witness at the office where the conversations are alleged to have occurred.’
    “It is not the intention of the Code to prevent a party to a suit from testifying to any extrinsic fact that tends to contradict a witness who swears to transactions or communications had between such party and a deceased person even where he cannot directly testify that no such communication or transaction was ever had. It was not the intention to prevent the contradiction of a living witness, but to prevent a Jiving party to a transaction or communication fro.m, testifying to it himself when death has closed the mouth of the other, party. So when a witness swears to a contract made by a defendant with a deceased party at a specified time and place, there is in our judgment nothing in the Code to. prevent the defendant from testifying that at the time named he was in Europe or at some distant place rendering it impossible that the witness speaks the truth.

      John MeCrone and J. T. Fenlon, for the appellant.

      M. J. McKenna, for the respondent.
   Opinion by

Davis, P. J.;

Bbady and DaNiels, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: DaNiels, J.;

text:
    CHARLES LANIER, Respondent, v. ANN E. SMITH, Appellant, Impleaded, etc.

      Action of foreclosure — effect of a judgment in it, upon a defendant claiming a dower right prim' to the lien of the mortgage —proper practice in such a case.

    Appeal from a judgment, recovered on a trial at the Special Term.
    The court at General Term said : “ The object of the action was the foreclosure of a mortgage given upon property in which the defendant Ann E. Smith claimed to have a preceding and paramount right of dower. She was made a party under the general allegation of the complaint that she had, or claimed to have, some interest in, or lien upon, the mortgaged premises, or some part thereof, which had accrued subsequently to the lien of the mortgage. By her answer she did not deny this allegation, and the judge presiding at the trial was therefore warranted in finding the fact that she made a claim of that description, and for that reason was a proper party defendant in the action. She, however, by her answer, set forth a statement of the facts upon which she claimed a further right to dower in the property superior to the mortgage, and gave proof upon the trial, having some tendency to establish the correctness of this answer. ■ By the judgment which was ordered and directed it was adjudged that she, together with the other defendants, should be forever barred and foreclosed of all right, claim, lien, interest and equity of redemption in the mortgaged premises and every part thereof,, and this adjudication has been insisted upon as legally prejudicial to her alleged interest as doweress under the pleadings and the proofs taken upon the trial. There is reason for holding that she may be right in this position, and that after having presented the answer which she did in the action, and evidence tending to sustain the truth of her allegations, that the court should have dismissed the complaint as to her, so far as' the action had a tendency to affect this paramount right claimed in her behalf. That was the course which seemed to receive the sanction of the court in Corning v. Smith (2 Seld., 82). And Brown v. Yolkening (64 N. Y., 76) and Emigrant 2nd. Sawings Bank v. Goldman (75 id., 127) seem to sanction as much as that, as a proper proceeding in the action
    The case of Lewis v. Smith (5 Seld., 502) does not conflict with this rule of practice. For there the bill for the foreclosure of the mortgage had been taken as confessed, while here the facts were expressly put in issue by the answer of the defendant which formed a part at least of the basis upon which the trial proceeded. After such an answer and evidence given under it, it might very well be that a judgment entered in this form would preclude the defendant from asserting her right to an interest by way of dower in the property in an independent suit. For that reason the judgment should either dismiss so much of the action as to this defendant as related to the interest claimed by her to be paramount to the mortgage, or else that interest should be excepted from the operation of the judgment by a proper statement expressive of that qualification.

      Benjamin M. Stillwell, for the appellant.

      Wheeler H. Beckham, for the respondent.
   Opinion by

DaNiels, J.;

Beady, J., concurred.

Davis, P. J,, concurred in conclusion, except so far as relates to the costs of the appeal.

Judgment modified as directed in opinion, and affirmed as modified, with costs to the appellant.


author: Dahtels, J.;

text:
    ERWIN DAVIS, Appellant, v. LELAND STANFORD, Respondent.

      ■Order for the examination of a pa/rty before trial — when one partner, seeking to compel a settlement of partnership accounts, may examine a defendant co-partner — the sworn denial Try the party sought to he examined, of any information as to the subject of the examination, does not constitute a ground for denying the application —Code of Civil Procedure, sec. 872.
    Appeal from an order vacating an order for tbe examination of tbe defendant before trial.
    Tbe action bad been commenced by tbe service of a summons, and tbe motion for tbe order was made before any complaint bad been served.
    The court at General Term said: “ The action has been brought to obtain a settlement of copartnership accounts, and to recover a balance which it has been stated is owing to tbe plaintiff out of the proceeds of tbe joint business. He is stated in his affidavit to have become the owner of a sixth interest in tbe business and that its object was the construction of. a line of railway with numerous branches and ancillary woi’ks, and the scheme which is now known as the Central Pacific Railway, and for the financiering and development of such scheme. The affidavit upon which the order was made complies with all the formal requirements of section 872 of the Code of Civil Procedure; and it also contains the statement that the plaintiff had demanded from the defendant an accounting of the affairs, business and profits of the partnership and the payment to him of his share, and that the defendant had refused to comply with the demand. To show that the examination of the defendant' as a witness was material and necessary to enable the plaintiff to frame his complaint and for the prosecution of his action, it was further stated in the affidavit that he was unable to frame his complaint without knowing who were and have, since the formation of the partnership, been the parties interested in these enterprises, and that he himself does not possess the knowledge or information which is necessary intelligibly to state these matters. It was further stated that they were within the personal knowledge of the defendant, and that he was in the possession and control of tbe books of account and records of the business and its transactions, and tbe profits resulting from it; that they were not known to himself, and that it was material and necessary for him to examine the defendant as a witness before trial to acquire this knowledge from him, and in that manner to secure the ability properly to frame his complaint in the action. From these statements and others elaborating them, as they are contained in the affidavit, a case was-made entitling the plaintiff to an order for the examination of the-defendant. The plaintiff had not participated in the business or any part of its active management, but that, according to the affidavit, had been confided more especially to the defendant and other persons with whom he was believed to have co-operated. And while the plaintiff may be entitled to his share of the profits of the adventures of the business, he was not in a condition in which he could legally state his case entitling himself to any relief of that description. For the information requisite for that purpose he was dependent wholly upon the defendant, as the case was stated in his affidavit. And without the information there is reason to believe the defendant could supply, the action could not be placed in the legal form adapted to the relief which the plaintiff might be entitled to upon the facts as he may ultimately be able to establish them in the suit. It has been further stated in the affidavit that the examination of the defendant is desired for the mere purpose of acquiring this information and to enable him to proceed with the prosecution of his action. In these respects the affidavit complied with all that has been required to entitle the plaintiff to the examination of the defendant under this section of the Code. And when the case has been so presented, section 873 has declared that the order for the examination must be made, as it was by the judge, to whom the application was made.
    “ The defendant has denied in his affidavit the partnership or adventure relied upon by the plaintiff, and his ability to furnish the information required by the examination defined in the order. But when a case for the defendant’s examination may be legally made-out, the Code has not provided that it shall be liable to be defeated by the denial of the party to be examined, of his ability to supply the information. The mode in which his ability is to be tested and determined is that of the oral examination prescribed by the provisions of the Code. "When a proper case has been made out the party making it and entitled to take the examination of the defendant has the legal right to an opportunity to obtain the information in this manner, and he cannot be deprived of that right by the •sworn affidavit of the person to be examined that he would be unable to supply the information. What the law has provided for is his oral examination and his deposition taken in that manner. 'The party seeking that relief is not obliged to accept his affidavit denying his ability to supply the information in place of his •deposition.”

      Joseph H. Choate and C. B. Alexander, for the appellant.

      F. N. Bangs, for the respondent.
   Opinion by

Dahtels, J.;

Davis, P. J., and Beady, J., concurred.

Order reversed, motion denied, with ten dollars costs and disbursements.


text:
    THE REPUBLIC OF MEXICO, Respondent, v. JOHN H. OCKERSHAUSEN, Executor, etc., of GEORGE G. TAYLOR, Deceased, Appellant.

      ■Construction of an agreement for a/rbitration — right to recover the a/mount named in a bond as a penalty — 2 B. S:(Edm. ed.), 892, 898, secs. 5-11 — Code of Civil Procedure, secs. 1915, 3347, mb. 11.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was commenced by the Republic of Mexico, a sovereign State, to recover the amount of a certain joint and several bond or obligation made and delivered to the plaintiff by the American and Mexican Railroad and Telegraph Company, as principal, and by several sureties, of whom the defendant’s testator George G. Taylor was one.
    The court at General Term, after adopting the construction given by the trial court to the provisions of the contract and affirming the decision by it made, said: “ Several other questions are raised and argued upon the appeal which do not appear to have been presented and considered in the court below.
    “ It is claimed by the counsel for the appellant that this court is without jurisdiction of the subject-matter of the action, because article 27 of the decree of the Republic of Mexico, granting to-the American and Mexican Railroad and Telegraph Company the privileges and powers conferred upon that corporation, provides for a tribunal which shall dispose of all questions as to the interpretation or execution of that decree or law.
    “ The article is. in these words: £ Article 27. Any question as to-the interpretation or execution of this law shall be decided by the-Supreme Court of Justice in full court, composed of at least one-half and one more of the number of magistrates that is to constitute the same. The court shall take cognizance of the case as-umpire in that relating to the substitution and as judge in regard to-the decision, without the right to any ulterior appeal whatever.’
    “ But we are of the opinion that this provision has no relation whatever to an action of this character upon a collateral obligation given to secure the performance by the corporation of the conditions of the decree. It is intended only to include and cover questions or disputes between the parties to the decree that might arise-in the progress of executing its provisions and involve the construction to be put upon its language. The questions as to the interpretation or execution of the law which article 27 provides shall be-decided by the Supreme Com’t of Justice of Mexico were, it seems to us, very clearly those which might and were likely to arise solely between the Republic of Mexico and the corporation, touching the-manner in which the work was required to be done and the obligations which performance under that decree would impose on that government. As to all such questions article 27 required them to be brought before the special tribunal designated therein, having the powers both of arbitrators for some purposes and of a court for other purposes. But we are unable to see any good reason for holding that that provision is sufficiently broad to compel the Republic of Mexico, in order to enforce the bond given by the corporation and non-resident sureties for the complete performance of its contract under the decree, to resort solely to the tribunal named in article 27. Su,eh construction would virtually deprive that government of all power to enforce the bond against the principal or its sureties, because of its inability to get jurisdiction of the persons of the several defendants who were and are non-residents of Mexico.

      “ The bond for the performance by the-corporation of its obligations under the decree is a distinct and independent contract for the breach of which an action may be brought in any court having jurisdiction of such a subject-matter and of the parties to the contract. No words of exclusion are found in article 27; and if they were they would be limited, as we thinlc, to that sort of dispute which frequently arises in the progress of the performance of contracts for the construction of railroads or other similar works or improvements. Assuming, therefore, that the question of jurisdiction was properly raised at that stage of the case, we are, nevertheless, of opinion that it is of no force to prevent this court from entertaining the action and proceeding to judgment therein.
    “ It is insisted also as another point, which seems not to have been raised at the trial, that the plaintiffs are not entitled to recover upon the bond in suit for the full amount of its penalty, but only for such damages as they shall show themselves to have sustained by reason of the failure of the railroad company to perform its contract. The •appellant relies upon the. provisions of the Revised Statutes (2 Edm. ed., 392, 393, §§ 5, 6, 9, 10, 11), which in substauce provide that in actions on bonds for the breach of any condition other than for the payment of money, the plaintiff shall assign the specific breaches for which the action was brought, and on the trial if the jury find that such breaches have occurred and that the plaintiff should recover damages therefor, they shall assess such damages and specify the amount in their verdict in addition to their finding upon any other question of fact .'submitted to them, and that the assessment of damages shall be entered upon the record and a judgment rendered for the penalty of the bond, and that the plaintiff have execution for the damages assessed, etc.
    “ These provisions would seem to be broad enough to cover the bond in question. But it is answered that they were repealed by chapter 245 of the Laws of IS80, by which the whole of the third part of the Revised Statutes was repealed except portions therein specified, and that the portions specified did not include any part of the provisions relating to recoveries upon bonds. This action appears to have been commenced in May, 1875, and the complaint assigned specific breeches for which the action is brought, thus complying with section 5 of the Revised Statutes above cited. It was tried at the October term, 1884, before which time all the statutes above referred to had been repealed and section 1915 of the Code of Civil Procedure substituted. But it is argued that that section did not apply to .this case, as section 3347, subdivision 11, expressly provides that chapter 15, in which section 1915 occurs, shall apply only to actions commenced after the first day of September, 1880, the day on which chapter 15 of the Code of Civil Procedure went into effect. The argument of the appellant’s counsel therefore fails, inasmuch as the statute was not in force at the time of the trial, while section 1915, which had been substituted for the statute, was not applicable to this action. The contention of the respondent’s counsel seems to be correct in so far as it relates to the question whether the statute was in force at the time of the trial, and it would therefore follow that a recovery for the full amount of the penal sum under common law rules was correct. It seems very clear that the bond in suit was not intended by the parties as mere security for such damages as the plaintiff should be able to show it had sustained by reason of the non-performance of the decree by the corporation. It was not a mere indemnity to protect against that class of damages, imposing upon the plaintiff the obligation of proving them, but in effect an agreement by the railroad company and its sureties to pay to the Republic of Mexico the sum named as compensation in case the railroad company did not perform its obligations under the decree. The requirement of the decree or law of Mexico was, in effect, that the railroad corporation should put un the sum of $200,000 to be paid over to that government in case the corporation did not proceed according to the decree to the performance and completion of the construction of the railroad, and when the corporation violated its contract in that respect, the Republic of Mexico was entitled under the decree to enforce the obligation of the bond to the full amount of the sum thereby forfeited.
    “We have come to the conclusion, therefore, but not without hesitation, that the judgment recovered in this action must be affirmed.”

      M. S. Thompson and B. F. Tracy, for the appellant.

      W. A. Butler, for the respondent.
   Opinion by

Davis, P. J.;

Bsady and DaNiels, JJ., concurred.

Judgment affirmed.


author: BRADLEY, J. I

text:
    In the Matter of the Application of THE COMMISSIONERS OF THE STATE RESERVATION AT NIAGARA, on behalf of the State of New York, to take Certain Lands in the Village of Niagara Falls.

      Taking land for public use — power of the legislature to malee the repos't of commissioners final — 1883, chap. 336 — what is a sufficient appropriation for the payment of damages to a landowner — 1885, chap. 183 — grant by the State of land fronting on a navigable river — the title to the bed of the stream remains in the State — Niagara river is a navigable river — a riparian owner may acquire, by pi’escription, ■a right to maintain a dam on, and divert the water of a navigable river — right to an island artificially formed in the bed of a stream — extent of the right limited by actual user.

    'Section 9 of chapter 336 of 1883, authorizing the selection, location and appropriation of certain lands in the village of Niagara Falls for a State reservation, provides that twenty days after the confirmation of the report of the commissioners, to he appointed therein, any party may appeal therefrom to the General Term of the Supreme Court, which may direct a new appraisal before the same or new commissioners, in its discretion. It further provides that, “the second report shall he final and conclusive on all the parties interested.”

      ¡Held, that the denial of a right to review the second report did not violate the provisions of the State Constitution, providing that no person shall be deprived of his property without due process of law.
    The fourteenth section of the said act provides that in case the legislature should fail to make an appropriation, within two years after the passage of the act, to pay the owners of the lands which might he selected and located by the commissioners, all proceedings which might have been taken for acquiring vthe title to the lands should be void and of no effect. The act was passed April 30,1883. On April 30,1885, an act was passed appropriating $1,433,429.5o1 to pay the amounts which had been awarded by the commissioners to the owners of lands to be taken, by their report which had been filed on September 20, 1884, and confirmed by an order of the Supreme Court, made in October, 1884. The appellant claimed that the act of 1885 did not comply with the requirements of the act in 1883, in that it did not certainly provide for the payment of the damages which might eventually be awarded to the owners, as the amount of the appropriation was limited to the amount of the awards then made, and no provision was made for any increase thereof' that might subsequently be made:

      Held, that as the report of the commissioners, while it stood confirmed, had the character of a judgment, it was presumed to represent the sum to which the owners were entitled and that the objection could not be sustained.

      Qumre, as to whether the validity or effect of the act of 1885 could be considered upon this appeal, which was brought to review an appraisal and award filed, and an order confirming the same made within the two years and before the passage of the latter act.
    In 1814 the State, by letter patent, granted to one Porter a tract of land described as lots No. 42 and 43 of the unappropriated lands lying along the easterly side of the Niagara river, as those lots had been surveyed and described in the field-book and map of the lands theretofore filed, together with all and singular the-rights, hereditaments and appurtenances to the same belonging, or in anywise-appertaining thereto, excepting and reserving all gold and silver mines. The-field-book referred to described the boundary lines as running to, along and by the Niagara river.

      Seld, that if the Niagara river was a navigable river the patent did not divest the-State of its title to any part of the bed of the stream.
    That, for the reasons that the Niagara river was in fact navigable, and that it constituted the natural boundary between the United States and Canada, it was to be deemed a navigable river; and that this being so the title to the bed of the stream remained in the State and did not pass by the grant to the riparian owners.
    That the fact that at the particular place in question, the vicinity of Niagara Falls, the river is not navigable, by reason of the interruption produced by the falls, does not qualify or distinguish in that locality its general character as a public river.
    The parties claiming title to the lands adjoining the river under the said grant, and their successors, had built a pier or wing-dam extending out into the river, which diverted a portion of the waters thereof into a canal constructed by them, from which it was taken into mills and manufactories built on the said lands, and there used for mechanical purposes. It appeared that a pier, forty or fifty feet in length, was constructed as early as 1812, and that the same was, in 1820 and 1821, extended some distance up the river. The evidence as to-how the dam as then extended compared jwith the present one was conflicting. Some evidence was given tending to show that it was, up to 1849, 135 feet less in length than at the present time; that in 1849 it-was extended 100 feet, then it was again extended in 1850 and 1851, in 1859 and 1860, and. again in 1880. In this proceeding, instituted to appraise the damages to he sustained by the riparian owners by the taking of their lands, they claimed to-haye acquired a prescriptive right to maintain the dam in the bed of the stream and to divert the waters thereof, and to he entitled to recover damages for being deprived of such rights. The counsel for the State contended that the-dam was a public nuisance, and that for that reason its continuance and use could not ripen into a right.

      Held, that as it appeared that the river was incapable of actual navigation at this place, and that the diversion of this water did not affect the navigability of' the river elsewhere, this contention could not be sustained.
    That the riparian owners were entitled to recover damages for being deprived of their right to divert and use the water of the river by means of a dam of such a size and width as the evidence showed had been by them erected and openly and notoriously maintained for a period of forty years immediately preceding the institution of these proceedings, but not for being deprived of any waters diverted by any extension of the dam made during that period of time.
    In excavating the canal made by the riparian owners, the materials removed were deposited in the river and resulted in the formation of a piece of land adjacent to the hank.
    Held, that the title to this land remained in the State.
    By the provisions of a deed partitioning among the then owners thereof the lands granted by the State, made in 1840, the right to divert from the channel sufficient water to propel two runs of stone was reserved to the owner of each lot. Owing to the improvements in water-wheels, and to an increase in the effective head of the w'ater, occasioned by a deepening of the channel, which had taken place between the time the partition was made and these proceedings were instituted, the effective power of the quantity of water reserved by that deed to each lot owner had been greatly increased and its rental value-enhanced. After the report of the commissioners had been made, a judgment was entered in an action brought by the owners of these lots, which determined the aggregate quantity of water which all were entitled to draw from the canal per minute, and the proportion thereof to which each lot owner was entitled.
    By chapter 111 of 1885 the appellant was authorized to present to the Supreme Court, upon appeal, as evidence in his behalf, the said judgment-roll, to he “ considered by the court on said appeal as to its competency, materiality and relevancy, as if the said evidence had been received by the commissioners of appraisement under objection and exception.”

      Meld, that as the State was not a party to the action, the judgment entered therein did not conclusively establish, as to it, the quantity of water which the riparian owners were, jointly or separately, entitled to draw from the river.
    It was claimed by the appellant that, after having acquired the right to that portion of the bed of the river embraced within the wing-dam, which they were entitled to maintain, they had the right to draw over that section of the bed any amount of the water of the river which they could cause to flow thereon, without regard to what amount had previously passed over it.

      Held, that the claim was untenable; that their right of diversion was limited, as against the State, to the quantity diverted during the period of forty years.
    Appeal by Rowland F. Hill from tbe appraisal and report of tbe •commissioners and from tbe order of tbe Erie Special Term confirming tbeir report. Tbe proceeding was taken pursuant to chapter 336, •of Laws of 1883, entitled “an act to authorize tbe selection location and appropriation of certain lands in tbe village of Niagara Falls for a State reservation and to preserve tbe scenery of tbe Falls of Niagara” as amended by Laws of 1884, chapter 109. Upon tbe application of “ tbe commissioners of tbe State reservation at Niagara” tbe court appointed Luther R. Marsh, Matthew Hale and Pascal P. Pratt, as commissioners of appraisement, and they proceeded to ascertain tbe compensation which should be made'to tbe owners of the property so selected and located pursuant to such act.
    On tbe 20th day of September, 1884, they made tbeir report whereby was awarded for tbe entire property $1,433,429.50, of which there was awarded to tbe appellant Hill $81,690, as compensation for bis property embraced within it; which property was owned by Hill and Murray when the proceeding was instituted, but during its pendency Hill succeeded to the interest of Murray. The report was confirmed by the order of the court in October, 1884. And by Laws of 1885, chapter 182, an amount equal to that of the awards was appropriated to pay them.
    The premises in question consisted of three and a half lots containing forty-nine one-hundredths of an acre upon which is a hotel and a pulp mill with a water-power used to propel machinery which the appellant claims is largely an element of value of the property sought to be taken. The facts involved in the questions presented upon the review are stated in the following opinion.

      William G. Choate, Charles W. Dayton and Brundage ds Chip-man, for the appellant.

      Ansley Wilcox, for the commissioners of the State reservation, respondent.
   BRADLEY, J. I

The ninth section of the act of 1883 (chap. 336)provides that within twenty days after confirmation of the report, an appeal may be taken to the Supreme Court from the appraisal and report, which may be-heard at General Term: that on the hearing of such appeal the court, may direct a new appraisal before the same or new commissioners,, and that “ the second report shall be final and conclusive on all the-parties interested.”

The counsel for the appellant contends that the provision denying the right of review of the second report is in violation of article 1,. section 6 of the Constitution of the State, and of the fourteenth amendment of the Constitution of the United States, in that it seeks to deprive him of property without due process of law. This proposition has some support if the commissioners cannot be treated as a judicial tribunal. "When organized they constitute a court, and are recognized as such by the Constitution of the State, for the purposes of ascertaining the compensation to be made (other than by the State) for property taken for public use. (Art. 1, § 7.)' This provision is the same as that for condemning property for purposes of railroads (Laws of 1850, chap. 140, § 18), which has been held valid. (In Matter, etc., of P. P. and C. I. P. R. Co., 85 N. Y., 489.) And there is no apparent reason for requiring the application of a different rule as against the State.

The fourteenth section of the act of 1883 contains the provision, that in case the legislature shall fail to make an appropriation within two years after the passage of the act, to pay the owners for the lands which may be selected and located by the commissioners, all proceedings which may have been taken shall be void. It is urged that this provision was not complied with and that the proceedings taken were ineffectual for any purpose. This act was passed April 30,1883. And on April 30, 1885, an act was passed appropriating $1,433,429.50 to pay the awards. It contains no provision which permits the payments in any event of any greater amount. The contention is founded in the fact that the possible increase of the amount of the awards is in no manner provided for; that no authority is given to pay, and no means furnished to obtain payment of thte increase in the event that it should be required by the final result of the proceedings taken to condemn the property. It may be questionable whether the act of 1885 (chap. Ill) and its effect are properly here for consideration, since this is a review only of the appraisal and award and the order of confirmation, all of which was done within the two years and before that act was passed. The act of 1885 has relation to the consequences of the proceeding rather than to the judicial ■action of the commissioners, whose determination is the subject of inquiry on this appeal. If- no right in the State to take the property is derived from the action of the commissioners and the court, by reason of defective legislation, a question is presented for consideration elsewhere and may not necessarily arise on this review.

The property cannot be taken without compensation, and until there is a certainty that it will be paid, or may be obtained, the ■owners cannot be divested of their property. That rule applies no less to the State than to a private corporation, except that in view -of the fact that the whole property in the State is held subject to the power of taxation for its legitimate purposes, it may not be required to pay before it can acquire title to property for public uses by means of the right of eminent domain, yet before it is taken an adequate remedy must be provided which will enable those entitled to payment, to seek and obtain it through the aid of the courts, if it may become necessary to resort to them. (Bloodgood v. M. and H. R. R. Co., 18 Wend., 9, 18; Rexford v. Knight, 11 N. Y., 308, 314.) The question raised by the appellant’s counsel is that the act of 1883 has provided that its continued existence as á law to support the proceedings, and the validity ofWhem taken under it, should depend upon subsequent legislation which has not been had to the extent required to support them, because the later act does not contain provisions which give certainty that the appropriation there provided for and permitted will cover the amount required to pay the compensation which may eventually be awarded for property ; that it arbitrarily limits the amount to be paid and received to that of the sums awarded, while the possibility exists for its increase by new appraisal and award, and that therefore the act of 1885 is not a compliance with the provisions of that of 1883, requiring for the support of the proceeding an appropriation to pay the owners for the lands so selected and located.

The apparent amount required to make such payment is provided for by the act in question. The report of the commissioners, while it stands as confirmed, undisturbed, fias the character of a judgment, and is presumed to represent tbe sum to which the owners are entitled as compensation. The appropriation was made to provide for such payment, and it does not appear that it may not be ■sufficient to pay the awards in the event of a new appraisal. We t.binlr the proceeding has not fallen for want of legislation.

The other questions presented have, relation to the value of “the property of the appellant embraced within that so selected and located, with its appurtenances, which involved the consideration by the commissioners, to some extent, of the rights the ■owners of these premises had to take and appropriate water from Niagara river for hydraulic purposes, which depended somewhat upon the question whether or not the river was a navigable one, and the title to the bed of the easterly half of it in the State, and if so, whether a prescriptive right had been acquired to ■divert from it water to the premises for the, uses to which it was there applied, and to maintain structures in the river for that purpose. The commissioners held that it was a navigable river, and “that the riparian owners had no title to any portion of its bed; and no right, as against the State, to maintain such structures in it to divert its waters, unless it was afforded by such continued-use as to permit the presumption of a grant. But they allowed compensation, based upon such right, without definitely determining that it existed.

It is contended that the grant, under which the title to the property in question is held, carried its boundary to the center of the river, and that the river is not a navigable one in the common-law ■meaning of that term.

By the treaty and cession'of 1186, between the States of New York and Massachusetts, which gave to the latter the proprietary right to that part of the State west of what is known as the preemption line (running from Pennsylvania northerly through Seneca lake), there was reserved to the State of New York, one mile in width along the easterly side and for the whole length of the Niagara river. And in June, 1814, it, by patent, granted to Augustus Porter and Benjamin Porter a tract of land (including that in .question), described as lots 42 and 43, of the unappropriated lands lying along the easterly side of the Niagara river, as those lots bad been surveyed and described in the field book and map of the lands filed, etc., together with all and singular the rights, hereditaments and appurtenances to the same or in anywise appertaining, excepting and reserving all gold and silver mines. The field book referred to described the boundary lines as running to, along and by the Niagara river.

It is contended that this grant, by its terms, or by necessary implication, conveyed the bed of the river to its center, and that the reservation, of gold and silver mines only, has some significance in that direction. We think there is nothing in that patent which had the effect to divest the State of any part of the bed of the stream if it was a navigable river.

, In August, 1820, Benjamin Porter released his interest in the lands to Augustus Porter, who, in December, 1824, conveyed an undivided half to Peter B. Porter. And they, in January, 1840, made between themselves a partition of them, by which they described the lands by lots and parcels and took title in severalty. And by this partition deed reference was made to the water and mill facilities furnished by some of the lots; and for the purpose of the regulated use of such privileges thereby declared to be necessary fqr the profitable occupation and enjoyment of them in common with other proprietors similarly situated, it was hy such deed-covenanted that each of the parties should thereafter have the right and privilege of taking and drawing for each lot apportioned to him, situated on what was called the lower canal, so much water as should be sufficient by a prudent use thereof to drive two run or pairs of mill stone upon such water saving principles as are usually adopted by skillful engineers and builders, subject in common with other proprietors to whom the right of using the water is or may be granted, and that each of the parties defray his just and equal proportion of the expenses of the necessary enlargement, extension, maintenance, preservation and reparation of the canal, raceways, etc.

Amongst the lots on the lower canal and included in such partition were those numbered 16, 18, 20 and half of lot 14, of which Hill and Mnrrav became the owners in 1877. They constitute the premises in question. For the purpose of supplying this canal with water a wing dam has been constructed of the length of 365 feet extending into and up the Niagara river from the bead of the canal,, and by which the water is diverted and conducted into it. The dam is supported by the bed of the river. From this canal water is taken on to the lots adjacent to it and applied as power to propel machinery. The appellant has a pulp mill on his premises so operated. And the value of the property depends largely upon the right to maintain this dam to supply the canal with water. As between individuals probably no question could arise in respect to the right to make and maintain the dam. But as against the State the inquiry arises whether it or the riparian owners have title to the bed of the river to its center. By the common law, title to the beds of navigable rivers was in the sovereign. And grants of land bounded by such rivers passed title to high-water mark only, while grants of land on one side of and bounded by rivers not navigable included one-half the stream and made its thread the boundary line. Those in the common-law sense of the term deemed navigable, were rivers only in which and where the tide ebbed and flowed. In many of the States that rule in its strictness has been and is applied, and in others the large fresh water rivers having adequate capacity and used for general purposes of navigation, are deemed navigable, and the States assume to have the proprietary interest in and jurisdiction over them, and substantially the same rule is applied to them as that of the common law to those whose waters are subject to tidal influence, with the difference in some instances that the low instead of the high water mark is adopted as the boundary line of the riparian owner.

This distinction is one of property only, and does not affect the public easement, for by the common law all fresh water rivers of sufficient magnitude and capacity for navigation are public highways, and although the entire proprietary interest of them is in the riparian owners, they have such title subject to the easement of the public, which they cannot lawfully interrupt. (Browne v. Scofield, 8 Barb., 239; Treat v. Lord, 42 Me., 552; S. C., 66 Am. Dec., 298.) But the right to the usufruct and enjoyment of the waters for any purposes to which water or its power may be applied is appurtenant to the ownership of the adjoining land, and may be so appropriated by the riparian owner, subject only to such easement and to the limitation that the rights of other riparian owners equally entitled to such use shall not be infringed. The rule is otherwise in respect to navigable rivers. There the property is in the sovereign or State, and the riparian owners as against it, for its use, have no proprietary interest or right in the waters as appurtenant to the soil owned by them on the river banks.

Whether the common-law qualification is applicable to the large rivers in this country has had some consideration by the courts of this State, and produced diverse views in the opinions of jurists. And the conclusion has been reached that the Hudson, beyond tidal influence, and the Mohawk, are navigable, and the State has title to, and jurisdiction over them, as effectually as those where tide ebbs and flows. (The Canal Appraisers v. the People ex rel. Tibbits, 17 Wend., 571; People v. Canal Appraisers, 33 N. Y., 461.) And the discussion furnished by the opinion in the latter case did not distinguish the Mohawk from other fresh water rivers of like magnitude and capacity for purposes of navigation, but seemed to place the departure from the common-law rule upon asserted reasons applicable to that class of rivers in this country, which do not apply to those of England; that while those of that country and the portions of them not affected by the- tide are comparatively short and of small magnitude, there are fresh water rivers in this country of great length and size, and having capacity for continuous actual navigation, and which are navigated by large vessels for commercial purposes.

In Commissioners, etc., v. Kempshall (26 Wend., 404), which related to the Genesee rivei’, the common-law doctrine was reaffirmed; but assuming that the contrary effect-should be given to the decision of the Tibbits’ case, then it was said that as the State had granted away its title to the Genesee river by the cession to Massachusetts in 1786, and the defendant there held under such grant and the State had no proprietary right, he took to the center of the river, and such right to the enjoyment of the waters as was appurtenant to his relation of riparian owner. The last proposition is not applicable to the Niagara river, no part of which was covered by such grant as has been before observed. And in the later case of Smith v. Rochester (92 N. Y., 463) the views expressed in the opinion delivered were to the effect that the common-law rule applied to the fresh water rivers in this State without reference bo their size, capacity or importance for the purposes of navigation, and consequently to all those where flux and reflux of the tide was absent the riparian owners, whose lands are bounded without restriction b.y such rivers or their banks, take title respectively from either •side to the thread of stream with all the rights appurtenant; and that the Hudson above tidal influence and the Mohawk are distin.guished from other fresh water rivers by reference to the fact that the early and original settlers along those rivers derived their titles from Holland where the civil law prevailed

It may be difficult on principle to see how the civil law gained and had supremacy in the valleys of the Hudson and the Mohawk, but it may be that long assumption and recognition, as between the State and the owners there, in respect to the proprietary rights to those rivers, are entitled to consideration in determining their status. Hut the opinion proceeds to say that it is generally conceded that this doctrine of the common law “ is inapplicable to the vast fresh water lakes or inland seas of this country, or the streams forming the boundary lines of States.” And in the Tibbits’ case the ■chancellor, while supporting the application of the .common-law rule to the rivers in this State, adds that a different rule must probably prevail as to those streams which form the natural boundaries between us and a foreign nation, and supports that proposition by very good reasons founded neither in the common or civil law, but in reasons national and international.

The line between the United States and Canada is located in the ■center of Niagara river. (Treaty of 1783, 8 U. S. Stat. at Large, 55 ; and that of Ghent in 1814, Id., 221; and such is the boundary of Niagara county, Laws of 1808, chap. 60.) So far as our attention has been called to any authority relating to this river it has been recognized and treated as, in every sense, a public river, as much as if it was an arm of the sea in which the tide flowed, and acknowledged as such. (Tibbits' Case, 17 Wend, 623; Kingman v. Sparrow, 12 Barb., 201.) And we think because it is navigable in fact, and constitutes the natural boundary between this and another country, is the reason why the proprietary right from its margin to such boundary line is in the State, and that the riparian owners have taken by the grant referred to only to the water’s edge ■of the stream. And that the fact that at the particular place in question the river is not navigable by reason of the interruption produced by the falls, does not qualify or distinguish it in that locality as a public river from its general character. "We do not deem it necessary for the purposes of this case to further express any opinion in respect to the applicability of the common-law doctrine referred to, to the large rivers in this State which constantly afford facilities for floating large vessels, except when navigation is interrupted by ice.

It follows that the riparian owners had no lawful right as against the State to construct and maintain the wing dam in question, and therefore no right to claim compensation for the value of its use for supplying water power to operate machinery on the premises,, unless it was constructed, and has been maintained under circumstances including those of acquiescence on the part of the State,, such as to equitably entitle the owners to relief, or unless they have the support of a prescriptive right to maintain it. In respect to the latter it will be assumed that the State could grant its right of property in this river and its bed, and that a right might to that extent be acquired through the statute of limitation, by such enjoyment for the period of forty years as is required to bar the right of action to terminate such encroachment, occupation and use. (Code Pro., § 75; Code Civil Pro., § 362; People v. Van Rensselaer, 8 Barb., 189; People v. Arnold, 4 N. Y., 508.)

To constitute such bar and right it is necessary that the use been joyed under a claim of right or adversely, and that it be notorious, continuous and uninterrupted for the requisite time. (2 Wash. Real Prop. [4th ed.], 322, 326; Colvin v. Burnet, 17 Wend., 564; People v. Arnold, 4 N. Y., 508; Miller v. Garlock, 8 Barb., 153.)

It appears that a short pier, forty or fifty feet in length, was constructed there as early as 1812, and that it was extended up the river some distance in 1820 and 1821. The evidence is in conflict, in respect to the distance and length then, as compared with the-present dam. There is some evidence, on the part of the appellant,, that it was then extended nearly to its present termination, while there is evidence to the effect that it was 135 feet less in length than the dam is now up to 1849, when it was extended 100 feet, again in 1850 and 1851, thirty feet, in 1859, 1860, and again in about 1880 a short distance further. And a map of 1836 was produced which located the terminus of the dam 135 feet short of where it is at present. This question of fact was with the commissioners and justified the conclusion that the wing dam had not for forty years had the length it now has by at least 135 feet. The canal as it now is, was partially made in 1812, was extended from time to time from 1819 to 1836, when it was taken as -far down as the premises in question. And the first building erected on them was a saw-mill in 1841, to operate which water was taken from this ■canal. This mill was destroyed by fire about the year 1848, and no ■other structure was placed on the premises requiring water-power until 1865, when a store foundry building was erected there, and about ten horse-power of water from the canal was applied to run it. And in 1876, 1877, that structure was converted into ■the present pulp mill, which contains much machinery and requires .a much larger amount of water power supplied by the canal. But from 1823 there were mills on some, of the lots above these premises ■operated by water taken from the canal. The use and enjoyment requisite to support the prescriptive right claimed relates as well to the use or diversion of the water as to the continuance of the dam. (Stiles v. Hocker, 7 Cow., 266.) The right to the usufruct of the water (except for purposes of navigation) is proprietary, and that of the State is paramount. (Gould v. H. R. R. R. Co., 6 N. Y., 522; Crill v. Rome, 47 How., 398, and cases there cited.) And although the riparian owner may as such use water of the river and has rights in that respect which cannot be impaired by individuals, such rights ■are subordinate to that of the State, and as against the latter he cannot appropriate them to his use. (People v. Tibbetts, 19 N. Y., 523.) While the right to maintain the dam upon the bed ■depends upon the requisite uninterrupted continuance of it at the place where located, the right to use the water of the river is dependent on the like continuous diversion of it. It does not very ■clearly appear how much water had been taken into the inlet and canal for the period of forty years before the proceeding was instituted. The evidence in respect to that fact is found in the character of the dam and its effect in the diversion of water from the river into the canal. If it be assumed that it was within that time 135 feet less in length than it now is, the water then taken by it was considerably less than at present. There is evidence tending to prove-that the reduction of its length, 120 feet, would reduce the quantity of water diverted by it thirty per cent. The commissioners were-permitted to find that there was no prescriptive right as against the-State to take from the river and use the quantity of water which is-taken by the dam as now extended. There had been a dam of upwards of 200 feet in length which continuously for upwards of forty years-gave some supply of water to the canal, and assuming that the right was acquired to thus maintain the dam, it necessarily follows that as a consequence the diversion of the water into the canal, which it would produce, would also result as a right. The evidence does not very definitely permit the measure of the quantity which would be-supplied to the canal by the pier or dam so curtailed.

The commission, without expressing any definite determination, of the question of prescriptive right, have, by their opinion, said that cliey “ practically decided this question in f^vor of the claimants, and have allowed what, in their judgment, is the full value of the water-power which has been used for the prescriptive period.” This renders it unnecessary for us to give further consideration to that question, unless they have applied an erroneous principle as-the basis of estimate, on the assumption that such prescriptive right existed, which question may arise as we proceed.

The contention of the counsel for the respondents, that this dam was a public nuisance, and, therefore, its continuance and use could not ripen into a right, we think is not supported.

It is conceded that the river is incapable of actual navigation at this place, and the diversion of -the water there does not affect the-river for that purpose elsewhere. A public nuisance is an injury to' the jas publicum, which- in this river is that of navigation only. The common right of the public is in no manner interrupted or liable to be impaired by this structure where it is located. Beyond the fact of navigation, the rights in the river are proprietary only, the invasion of which is to be dealt with as such. The common right of navigation in navigable rivers of the State is in the people, and the equality of their right to use them for that purpose cannot be abridged except by themselves, through the power they have delegated to the legislature. (People v. N. Y. and S. I. F. Co., 68 N. Y., 71-78.)

A question is presented in respect to a piece of land reclaimed from or made in the bed of tbe river opposite these premises and adjacent to the bank. On the hearing there was conflict of claim to that made land, founded in. the contention of those succeeding to the rights of the parties who took under the original grant that the premises conveyed to Hill and Murray did not extend to the bank of the river, but were bounded on that side by an intervening street, known as Cascade street, running along on the bank between them and the stream, and that the center of the street was the boundary line of the appellant’s land. If that contention is supported in fact he is not entitled to it, because the right to accretions as such in the bed of the river depend- upon actual contiguity. And any separation of his land from such alluvion by that of another, however narrow it may be, defeats his right. (People ex rel. Banks v. Colgate, 67 N. Y., 512; Saulet v. Shepherd, 4 Wall., 502; The Schools v. Risley, 10 id., 91; Barney v. Keokuk, 94 U. S., 334; 3 Wash. Real Prop. [4th ed.], 55.) But it seems ■unnecessary to determine the question of boundary, as the formation was not such as to govern title to it by that of the contiguous bank. To vest such title it is necessary that the formation be gradual, or imperceptible, in the legal sense of the term. (3 Wash. Real Prop., 59; Halsey v. McCormick, 18 N. Y., 147; Cook v. McClure, 58 id., 437; St. Clair v. Lovingston, 23 Wall., 46.) This was not done in that manner, nor was the formation produced naturally or artifically wholly by the action of water, but by the deposit there of material excavated in. the construction of the canal. This did not divest the State of its ownership in the portion of the bed of the river so reclaimed. (Wetmore v. The B. G. L. Co., 42 N. Y., 384.)

The learned counsel for the appellant contends that his property was greatly undervalued by the commissioners, and that the compensation was very inadequate. And while this contention relates to the premises, exclusive of his alleged water- rights applicable to them, the latter are the subject of the greater discrepancy between the amount claimed and allowed. By the arrangement, as has been seen, which distributed the rights to the respective owners of the lots on the canal as between themselves, each lot was entitled to sufficient water from it to propel two runs of stone. Hill and Murray bad three and a-half lots, which entitled them to sufficient for seven runs of stone.

In 1840, when such rights were defined, the water-wheels in use were those known as the tub, breast, overshot and undershot wheels, and as then ordinarily used it required from ten to twenty-five horsepower to drive one run of mill-stones. And in the use of those water-wheels, an efficiency of only from sixteen to forty per cent of power was realized, although the overshot wheel, when well placed, might give sixty per cent effective power, but this required comparatively expensive preparation, which was not usually accomplished. Since then improvements have been made, and brought into use, water-wheels which give from seventy-five to upwards of eighty per cent efficiency, and especially is that afforded by what is known as the turbine wheel. So that with the same quantity and head the efficient power is greatly increased for the propulsion of machinery upon' these premises. And since 1840 the head has, by excavation, been increased from eight and a-half feet to upwards of sixteen feet practical head, thus doubling the power which may be appropriated to such uses. Upon this method of calculation, a largely increased efficiency is found, and an estimated rental value per horse-power is made on that basis, and when capitalized produces a sum very much in excess of that awarded to the appellant, but on this subject of value there is a wide difference and conflict between the witnesses of the respective parties.

The appellant has been permitted, by an act of the legislature, passed April 7,1885.(chap. Ill), to present to the court on this appeal, as evidence, a judgment-roll in an action between the persons owning lots along the canal to determine, as between themselves, their respective rights to the use of the water taken into it for hydraulic purposes. This judgment was rendered after the report of the commissioners was made and confirmed; and by it the rights of the parties to the record, as between themselves, are apparently established, in respeci. to the use of' such water, upon the basis of the original distribution of rights before mentioned. And it declares that when that was done in 1840, with a head of eight and a-half feet, twenty-horse power, was required to drive one run of stone with the waterwheels (then in use), of thirty per cent duty, equal to a flowage of 4,152 cubic feet of water per minute. That the aggregate quan-títy of water wbicb all tbe owners may use from the canal is 107,952 cubic feet per minute, of which the owners of the premises in question are entitled to 29,064 cubic feet per minute. It is contended that this record is conclusive evidence in this proceeding •of the rights of the appellant in respect to the water; and establishes the fact that, with the increased head and improved wheels, he has, for his lots, the right to appropriate upwards of six hundred ■effective horse-power.

The act referred to does not give the record that effect, but directs that it shall be considered by the court on the appeal, “ as to its competency, materiality and relevancy, as if said evidence had been received by the commissioners of appraisement under objection and ■exception.” So that the legislature has not adopted this adjudica, tion as effectual to establish against the State any rights of the parties to the action by the judgment declared. The record stands upon its own merits, and has in this proceeding such support only •■as it alone can furnish as evidence.

The rule is general that a judgment is not evidence against one who is neither a party to the record or a privy of the parties to it, ■or some of them. (1 Grreenl. Ev., §§ 522, 523.) By this judgment is declared the right of the parties to take to their premises and use .■a certain quantity of the water of the Niagara river. If that be assumed, then the matter of distribution by the judgment which -concluded the parties might be effectual to establish their rights as between them respectively, and a third party interfering with their rights. But the difficulty is, that the State orginally having the ■proprietary interest in the use of the water of the river, does not •concede, but contests their claim of right to the use of the water, ¡and not having been a party to that action, and having had no opportunity' to be heard there, the judgment in that respect has no force as against it. And when we come to inquire about that on the assumption of a prescriptive right of those parties, the question ■arises, how much water did such right afford them ?

It appears that the commissioners were permitted to conclude^ ••and it may be assumed that they did hold, that those parties had no *uch right to the use of the water which was diverted by the dam, as it was at the time of the hearing, and that' a considerable portion of it had been added within forty years. And it appears by the evidence that by the lengthened dam the quantity taken into the inlet was only 72,000 cubic feet per minute, and only 31,000' cubic feet per minute of that entered the canal; that 33,000 feet-per minute went over the spillway into the river above the canal,, and the residue escaped by leakage and waste. There is, therefore, no support for the contention that those parties have acquired, as-against the State, the right to take from the river into the canal 107,000 cubic feet of water per minute. And when that part of the judgment fails as a basis of calculation, it has no support as evidence-in this proceeding of the qucmtum to which they are respectively entitled. It appears that the velocity of the water in the river outside and at the head of the inlet, is seventeen to twenty feet per second, and in the inlet seven and eight one-hundredths feet per second, while in the canal .it is only one and one-half feet per second.

There is evidence tending to prove that the velocity of the water in the inlet and canal may be accelerated by increase of fall and capacity. And it is claimed, and there is some opinion to the-effect, that by taking 120 feet from the dam the deficiency may be-made up by deepening the channel of the inlet and directing chutes into it. But the supply of the quantity of water assumed as-the basis of the estimates contended for will be much more than has ever been taken by means of the dam as it is.

It is contended in support of the claim that, having acquired the-right to that portion of the bed of the river embraced within the-wing dam, the parties have the right to draw over that section of the bed any amount of the water of the river they can cause to-flow there, and that it is immaterial how much they have hitherto-drawn through it or used. And that therefore the commissioners erroneously based their right upon the quantity used. But as the paramount usufructuary right to the water is in the people of the State, the riparian owners can have no greater right by prescription, in respect to quantity than that afforded to them by the condition of the means of the diversion as maintained continuously for the-prescriptive period. A right so afforded is defined and described in extent by the user and enjoyment which gave it. The right here under consideration is not one of physical occujiation, but of diversion and use of water as appurtenant to property in connection. with the use of a certain portion of the bed of the stream for that purpose. The right depends upon use, and is limited by it, and as-against the original proprietor it cannot be extended beyond that which produced the right. The people of the State, by their legislative power, are seeking to appropriate to a public use — to the use-of themselves • — • that which is theirs, and by the right of eminent-domain, property of certain individuals.

The right to the use of the running water of the river, ‘except so far as it has become appurtenant to the property of the claimants-by an acquired prescriptive right of diversion and use, remains in the people of the State, with the right to treat it as exclusively for public purposes. The right of diversion so acquired by those parties as against the State must be limited to the quantity and extent-of diversion for forty years. It cannot be enlarged by the creation of additional means for appropriation of the use of it. And it may be assumed that in that view the commissioners applied the-rule of measure to the rights of the claimants in that respect. So-that assuming the existence of the right of diversion to the same-extent as the structures maintained for that length of time may produce, for the use of the landowners, it is quite evident that the-appellant is not entitled to the quantity of water or of power from it, for his premises, which is claimed in his behalf. And we cannot say in view of all the evidence that his rights in that respect have been under-estimated by the commission. It does not in any manner appear that the commissioners applied erroneous principles to their method of estimating value, or that they failed to recognize all the existing rights of the appellant, in making the award of compensation to him. Tie is entitled to the full market value of' his property for any and the most advantageous purposes for which it is adapted or may be used. (Boom Co. v. Patterson, 98 U. S., 403; Trustees of College Point v. Dennett, 5 T. & C., 217; Dickenson v. Fitchburg, 13 Gray, 546.) There is apparent conflict of evidence in respect to the value of the property, by some of which it is estimated below the amount of the award, and by some very much in excess of it. It was such as to present a question of fact for the commissioners to determine. And they were required by the statute to and did take a personal view of the premises. We have carefully examined the evidence on that subject and think their conclusion was justified and is supported by it. And we cannot say that the ■commissioners failed to award “ a just and proper compensation.”

We fail to discover any substantial error in the admission or exclusion of evidence on the hearing. The appraisal and report and the order of confirmation should be affirmed.

Smith, P. J., and Barker, J., concurred.

So ordered.