author: Ruger, Ch J.

text:
    Emma J. Nicholls, Appellant, v. Phebe L. Wentworth, Respondent.
    The owner of one tenement may acquire an easement over the premises of another by an open, notorious, and continuous user, for more than twenty years, under a claim of right, adverse to the owner and with his knowledge and acquiescence.
    B. and W. being owners of adjoining lots in a village, in 1849 opened an alley-way between them, one-half being on the Tot of each; each erected a fence bounding the alley, on his own land, and they and their grantees respectively thereafter kept up and maintained the fences, and mutually and uninterruptedly down to 1880, used the alley as a private way, and for passage with their horses and carriages to reach the stables and other structures on the rear of the lots; each party built barns on his lot adapted to such joint use of the alley, which have been since maintained. In 1869 plaintiff purchased B.’s lot, and, at the suggestion of W., caused a clause to be inserted in her deed describing the alley as being half on each lot, and granting such right of way therein as the said parties can lawfully grant to be used and enjoyed in common with the owners’ of the adjoining lot; the conveyance being made subject to the right of said adjoining owner in said alley. Held, the testimony authorized a finding that the use of the alley had been for more than twenty years open, notorious and well known, under a claim of right, and adverse to the exclusive ownership of any part of the way in defendant who claimed under W.; that the declaration in the deed, participated in by both adjoining owners, not only characterized any subsequent use of the alley as being made under a claim of right, but authorized the inference that the prior user had been exercised under a similar claim ; and that plaintiff was entitled to maintain an action to restrain defendant from a threatened obstruction of the way by the building of a fence on the line of the lots.
    (Submitted October 13, 1885;
    decided November 24, 1885.)

      Wiseman v. Lucksinger (84 N. Y. 31), distinguished.
    Appeal from order 'of the General Term of the Supreme Court, in the fourth judicial department, made January 9,1883, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.
    This action was brought to restrain defendant from erecting a fence which the. complainant alleged defendant threatened to build in an alley-way between and partly upon the lots of each. The answer admitted the intent to erect the fence, but claimed the right as owner of the land to inclose that portion of the alley upon her lot.
    The facts so far as material are stated in the opinion.

      Ransom & Joyce for appellant.
    Twenty years uninterrupted and unqualified enjoyment of such a right as plaintiff claims is decisive evidence of a grant. The law requires the jury to presume and find it. (Lansing v. Wisewell, 5 Denio, 213 ; 5 How. Pr. 77; Hammond v. Zehner, 21 N. Y. 118; Tranger v. Sassaman, 14 Penn. St. [2 Harris] 574; Corning v. Gould, 16 Wend. 534; Worral v. Rhoade, 2 Whart. [Penn.] 427; Coolridge v. Leonard, 8 Pick. 509; Blake v. Everett, 1 Allen, 248; Wash, on Easem. and Serv. [3d ed.] 137.) The use of an easement for twenty years unexplained will be presumed to be under a claim or assertion of right and adverse, and not by the leave or favor of’the owner, and becomes sufficient to raise the presumption of a grant. (Miller v. Garlock, 8 Barb. 153; Ward v. Warren, 15 Hun, 600; 82 N. Y. 265; Combs v. Vigotty, 12 Weekly Dig. 432; Parker v. Foote, 19 Wend. 308; Kana v. Bolton, 36 N. J. Eq. 21; Com v. Forrest, 60 Md. 74.) And so if .under a paroi consent, or paroi gift, or paroi contract. (Stearns v. Janes, 12 Allen, 582; Barnes v.
      Haynes, 13 Gray, 188; Townsend v. Bissell, 4 Hun, 297; Craven v. Rose, 3 S. Car. [Richardson] 72; Wash, on Easem. and Serv. [3d ed.] 137. The use by the successive owners of lot 15, of that portion of lot 6 covered by the way, was hot interrupted by the change of ownership, but is to be deemed continuous. (Leonard v. Leonard, 7 Allen, 277; Miller v. Ggarlock, 8 Barb. 155; Kana v. Bolton, 36 N. J. Eq. 21; 3 Kent’s Com. 444; Wash, on Easem. and Serv. [3d ed ] 157.) The user once begun passed by the conveyances of lot 15 from Reynale down to Mrs. Holly as an appurtenance, and each deed had that effect, although the way was not mentioned nor the word “ appurtenances ” used therein. ( Voorhees v. Albro, 18 N. Y. 48; Kent v. Waite, 10 Pick. 138; Newmam v. Nellis, 97 N. Y. 285; 4 Kent’s Com. 467, marg. p., note d.) Therefore, Mrs. Holly in 1866, or thereabouts, acquired a full right tc the easement in question by prescription, and it attached to and would have gone with that part of lot 15 conveyed by her to plaintiff without being specially described in plaintiff’s deed. (Wash, on Easem. and Serv. [3d ed.] 36.) The appurtenances which pass are not limited to those which are absolutely necessary to the enjoyment of the property conveyed; it is sufficient if full enjoyment of the property cannot be had without them. (Simmons v. Cloonan, 81 N. Y. 557; Adams v. Conover, 87 id. 422.) The owner of a servient tenement has always a right to put gates or bars across the way so long as he does not interfere with the user by the owner of the way. (Gerard’s Titles [2d ed.], 656; Wash, on Easem. and Serv. [3d ed.] 230, 264; Bakeman v. Talbot, 31 N. Y. 366; Huson v. Young, 4 Lans. 64.) Defendant is estopped from denying plaintiff’s right to the easement. (Wash, on Easem. and Serv. [3d ed.] 97; Cheney v. Arnold, 18 Barb. 434; 3 Kent’s Com. 442, marg. p., note c; De Herques v. Marti, 85 N. Y. 609; Brown v. Brown, 30 id. 519; Storrs v. Barker, 6 Johns. Ch. 166.) When the plaintiff had shown an actual user for more than twenty years by herself and grantors of that part of the way covering land of defendant, her case was made out prima facie* (1 Greenl. onEv. [Redf. ed.], § 74; Haight v. Badgley, 15 Barb. 499; Wash, on Easem. and Serv. [3d ed.] 137, 138.) If defendant claimed the user was by license or permission or matter of favor from her or her testator, she should have pleaded it. (Clifford v. Bam, 81 N. Y. 52; 1 Van Santv. Pl. [2d ed.] 469, 470.) Under the evidence the use of the alley by the owner of lot 15 has been open and notorious and well known to the owner of lot 6, and was under claim of right and was adverse. ( Ward v. Warren, 15 Hun, 600.) Where the original way has been altered by consent of parties the altered way is subject to the same equities as the original way. (Hamilton v. White, 4 Barb. 60; 5 N. Y. 9; Smith v. Lee, 14 Gray, 73; Pope v. Devereux, 5 id. 409.)

      John T. Murray for respondent.
    Even if the plaintiff and defendant had derived their title from a common grantor, where the rule in regard to uses is to uphold if possible the easement as between grantor and grantee, the several conveyances prior to 1869 would defeat the plaintiff’s claim. (Parsons v. Johnson, 68 N. Y. 62.) If this was an action to recover real property between these parties, as the Code now stands, the production of defendant’s title by will would end the matter and the law would deem the possession of the plaintiff to be under and in subordination to the legal title. (Code, § 368.) The General Term in reversing the judgment of the Special Term has correctly decided and disposed of this case as to the law and facts. (Cronkhite v. Cronkhite, 94 N. Y. 383.) An easement of the character claimed can only be created by deed or grant, or by prescription from which a grant can be inferred. (2 R. S. 134, § 6; Wiseman v. Lucksinger, 84 N. Y. 31.)
   Ruger, Ch J.

The General Term reversed a judgment awarding a perpetual injunction against the defendant from obstructing a certain alley, upon the ground that the evidence did not authorize the finding made by the trial court, that the use of the alley by the plaintiff and her grantors had for a period of more than twenty years been open, notorious and well known, under a claim of right, and adverse to the exclusive ownership of any part thereof by the defendant.

The order of reversal must be deemed to have been made upon questions of law as it does not specify that it was made upon questions of fact. (Code of Civ. Pro., § 1338; Davis v. Leopold, 87 N. Y. 620; Rider L. R. Co. v. Roach, 97 id. 378.) The only question, therefore, for our consideration is whether there was sufficient evidence, to support the finding of the trial court, and the legal conclusions predicated thereon, that such a user will establish a right in one party, to an easement in the land of another, if continued for a sufficient length of time. There is no conflicting evidence in the case, and the finding was based upon undisputed testimony. It showed that in the year 1816, one Reynales and Wentworth being owners of adjoining lots on Church street, in the village of Lockport, opened an alley-way about fifteen feet in width, one-half lying on each side of the dividing line, and then commenced and mutually continued to use the same, either by themselves or their respective grantees, uninterruptedly from that time to the year 1880, as a private way to reach - the stables and other structures on the rear of their respective lots. Each party erected fences bounding the side of the alley on his own land and they have each substantially maintained them until the present time. Each party built barns on their respective lots adapted to the joint use of such alley and have ever since occupied them, and have used said alley in passing over and through the same with their horses and carriages, etc., from Church street to and from such barns and other structures. In 1869 the plaintiff purchased of its owner the westerly half of the lot lying south of said alley, and at the suggestion of the defendant’s husband, who was then and for a period of twenty-five years had been the owner of the northerly lot adjoining said alley, caused to be inserted in her deed a clause describing the alley as being half on each lot and continuing as follows: “ together with such right of way in the alley aforesaid from Church street to the north end of the premises above described as the said parties can lawfully grant to be used and enjoyed always in common with the owners of the remaining east part of said lot No. 15, and the owner or owners of the said lot next north of said lot No. 15 who have an interest or right of way in common in said alley, and this conveyance being made subject to the right of the owner of said lot north of said lot No. 15 on said alley.” It also appears that the plaintiff about the same time built an expensive house on her lot which was so adapted thereto, that she could not óonveniently obtain access to her stable in the rear except through the alley in question.

There is no evidence in the case conflicting with the presumption of mutual grants by the respective owners to each other of the right of way in question, or with the deductions logically flowing from the declaration made in the deed above referred to, by the owner of one lot and the acquiescence therein of the other, of the existence of a right in the alley capable of being conveyed and acquired under such a deed. Such a declaration participated in by both adjoining owners not only characterized any subsequent user of the alley as being made under a claim of right, but authorized the inference that the prior user and possession had been exercised and possessed under a similar claim. The declaration of the defendant’s devisor made previous to the opening of the alley, that the owners of the said lots intended to lay out and open an alleyoon the boundary line for the use of their respective premises, tends to confirm the presumption of a mutual grant of a right of way over the premises in question.

There being no, direct evidence of the agreement under which the user commenced there is nothing to rebut the presumption of a mutual grant, flowing from the acts of the parties, in fencing the inclosure and exercising the right of passage thereover, without question or objection for a period of twenty years.

The doctrine that the owner of one tenement may acquire an easement over the premises of another by the open, notorious and adverse occupation thereof under a claim of right for a period of twenty years is too well settled by the authorities to permit of any dispute. The case of Barnes v. Haynes (13 Gray, 188) is identical with this in its leading facts, and the opinion, written by Chief Justice Shaw, is so directly in point that we cannot refrain from making a brief extract therefrom. He says: “ The use of the common way by each, so far as it was used in and over the soil of the other, was adverse, uninterrupted and used under a claim of right and continued more than twenty years, and thereby each acquired such an easement in that portion of the land of the other which was covered by the way as the other could not lawfully disturb. When such actual uninterrupted use of a way, as of right, is shown to have existed a sufficient length of time to create the presumption of a grant, if the other party relies on the fact that those acts, all or some of them, are permissive, it is incumbent on such party by sufficient proof to rebut such presumption of a non-appearing grant, otherwise the presumption stands as sufficient proof and establishes the right.”

The same question has also been recently examined and discussed in an elaborate opinion by Judge Earl, in this court in the case of Ward v. Warren (82 N. Y. 265) where it was held that proof of an exclusive, continuous, uninterrupted, open and notorious user under a claim of right with the knowledge and acquiescence of the owners of the servient tenement for a period of upwards of twenty years, authorizes the presumption of a grant of the interest so exercised and enjoyed.

The court below refers to the case of Wiseman v. Lucksinger (84 N. Y. 31) as maintaining some principle conflicting with the views above presented. We do not so understand that case. The proof there showed the understanding under which the user in question commenced, and it was there held that such proof showed a license merely and was revocable by the owner and licensor.

The order of the General Term should be reversed and judgment of Special Term affirmed.

All concur.

Order reversed and judgment affirmed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    John Gottlier, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
    (Argued October 21, 1885;
    decided November 24, 1885.)
    Plaintiff, a brakeman in defendant’s employ, was crushed between two cars while coupling them. In an action to recover damages for the injury it appeared that defendant’s road was so arranged that both broa dand standard gouge cars could be run upon it on the same train, and there were both kinds of cars upon the train in question. It broke in two in the night-time, and the two cars which plaintiff was required to couple were of different gouge ; failing to'make the coupling the draw-heads passed each other, and the bumpers, which the evidence tended to show were intended to protect brakemen, and should be wide enough for that purpose, being but three inches’ wide, and entirely insufficient to- protect him, he received the injury complained of. Held, that where trains are so made up of cars of different gouge, as the draw-heads are more apt .to pass each other, it is more important that the bumpers should be well looked to, that they may afford the intended protection, and the defect being an obvious one, and easily remedied, the testimony authorized a finding of negligence on the part of defendant.
    The two cars in question did not belong to defendant but to other railroad companies, which were received by defendant and were being transported over its road; they were in good repair, and the defect was in their original construction. Held, that this did not relieve defendant from liability.
    A railroad company, drawing the cars of another company over its road, owes a duty to its employes in reference thereto. It is bound to inspect such cars the same as its own, and is responsible for the consequences of such defects as would have been disclosed by ordinary inspection, as it is its duty either to remedy them or to refuse to take the cars. The employe no more assumes the risks of such defects than those in cars belonging to his employer.
    Appeal from judgment of the General. Term of the Supreme Court, in the second judicial department, entered upon an order made May 13, 1883, which affirmed á judgment in favor of plaintiff, entered upon a verdict. (Reported below, 29 Hun, 637.)
    ■ The nature of the action and the material facts are stated in the opinion.

      Lewis E. Carr for appellant.
    The servant assumes the risks ordinarily incident to the business in which he engages as it is conducted by his employer, or as it may from time to time be changed by the employer. (Wood on Mast, and Serv., § 326; Priestly v. Fowler, 3 M. & W. 1; Owen v. R. R. Co., 1 Lans. 108; 6 Alb. L. J. 174; De Forrest v. Jewett, 88 N. Y. 264; Gibson v. R. R. Co., 63 id. 449; Ladd v. R. R. Co., 119 Mass. 412; R. R. Co. v. Flanagan, 77 Ill. 365; Powers v. R. R. Co., 98 N. Y. 274; Haskin v. R. R. Co., 65 Barb. 129; De Graff v. R. R. Co., 3 T. & C. 255 ; 76 N. Y. 125; Henry v. S. I. R. R. Co., 81 id. 373; White v. Sharp, 27 Hun, 94.) There was error in the disposition of the case at the Circuit, because the accident to the plaintiff resulted from imperfections, if there were any, that were patent, and the risk from them was one assumed by the plaintiff. (Wood on Mast, and Serv. 681, 682, 698; De Graff v. R. R. Co., 3 T. & C. 255; Laning v. R. R. Co., 49 N. Y. 531; Smithson v. R. R. Co., 1 A. & E. R. R. Cases, 101, 105.) Opportunity to know is knowledge. (Porter v. H. R. R. Co., 2 A. & E. R. R. Cases, 44; 71 Mo. 66; Wright v. R. R. Co., 25 N. Y. 562; Loonam v. Brockway, 3 Robt. 74.) The court erred in ignoring the fact that the cars between which the plaintiff was in jured were not those of the defendant, and in instructing the jury that such fact was entirely immaterial. (Salter v. Jewett, 85 N. Y. 61; Agawam Bk. v. Streever, 18 id. 502; Eaton Co. v. Every, S3 id. 31; Isaacson v. R. R. Co., 94 id. 278; M. R. R. Co. v. Smithson, 1 A. & E. R. R. Cases, 101, 106; People v. R. R. Co., 28 Hun, 543; S. C., 22 id. 533 ; Jones v. R. R. Co., id. 284; Ballou v. R. R. Co., 26 Alb. L. J. 137; 5 A. & E. R. R. Cases, 480 ; Baldwin v. P. R. Co., 50 Iowa, 680; Mackin v. B. & A. R. R. Co., 135 Mass. 201; 15 A. & E. R. R. Cases, 196; Smith v. Potter, 2 id. 140.) Many things in railroad management are matters of executive detail, which must of necessity be intrusted to servants to perform, and neglect in those duties is not of the master. (Rose v. R. R. Co., 58 N. Y. 217; McCosker v. R. R. Co., 84 id. 77; Bissel v. R. R. Co., 70 id. 171.) There was want of proper care on part of the plaintiff. (Wood on Mast, and Serv., §§ 335,372, 373;
      Brown v. Maxwell, 6 Hill, 592; 2 Thompson on Neg., 1014, §§ 19, 20; McMillan v. R. R. Co., 20 Barb. 449; T. R. R. Co. v. Ashbury, 84 Ill. 429; R. R. Co. v. Jewell, 42 id. 99; Porter v. H. R. R. Co., 2 A. & E. R. R. Cases, 44; Gorton v. R. R. Co., 45 N. Y. 660; Hewitt v. R. R. Co., 3 Lans. 358; Tolman v. R. R. Co., 98 N. Y. 128.) It is the duty of the servant to make a vigilant use of his senses, for the purpose of ascertaining the condition of the appliances of which he is about to make use, so far as they are open to ordinary observation. (Lake Shore R. R. Co. v. McCormick, 5 A. & E. R. R. Cases, 474.) If the servant has the same knowledge, or means of knowledge, or the same opportunity of knowledge, with the master, of the defect complained of, such opportunity is in law knowledge and he is chargeable with its consequence. (Wood on Mast, and Serv., § 366; R. R. Co. v. Barber, 5 Ohio, 541; Loonam v. Brockway, 3 Robt. 74, 83.) If the defect is open to ordinary observation, the risk from it is assumed. (Wood on Mast, and Serv., § 335; Owen v. R. R. Co., 1 Lans. 108;, Powers v. R. R. Co., 98 N. Y. 274.)

      John W. Lyon for respondent.
    A railroad company owes to its employes the duty of providing and maintaining its operative machinery and appliances in good, safe and suitable repair, so as to protect them against danger, and those who are charged with the duty of providing and maintaining the machinery and appliances for the operation of a railroad represent the corporation, and their want of care and omission of duty in that respect is the negligence of the corporation itself. Ellis v. Erie Co., 95 N. Y. 546; De Kay v. Erie Co., 33 Hun, 665; Flike v. B. & A. R. R.. Co., 53 N. Y. 549; Laning v. N. Y. C. R. R. Co., 79 id. 521; Connolly v. Pollion, 41 Barb. 366; Plank v. N. Y. C. R. R. Co., 60 N. Y. 607; Mehan v. S. B. & N. Y. R. R. Co., 73 id. 585; Booth v. B. & A. R. R. Co., id. 138; Muldooney v. Ill. C. R. R. Co., 36 Iowa, 462; Fay v. M. & St. L. Ry. Co., 15 N. W. Rep. 241; King v. O. & I. Ry Co., 14 Fed. Rep. 277; G. T. Ry Co. v. Cummings, 27 Alb. L. J. 294; Corcoran v. Holbrook, 59 N. Y. 517 ; Ryan v. Fowler, 24 N. Y. 410; Kirkpatrick v. N. Y. C. & H. R. R. R. Co., 79 id. 240; Kain v. Smith, 80 id. 458; Cone v. D. L. & W. R. R. Co., 81 id. 206; Fuller v. Jewett, 80 id. 46; Hough v. Ry. Co., 100 U. S. 213; Painton v. N. C. R. R. Co., 83 N. Y. 7; Braun v. C., R. I. & P. R. R. Co., 22 Alb. L. J. 117; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492 ; Shanny v. Androscoggin Mills, 66 Me. 420; Gibson v. P. R. R. Co., 46 Mo. 163 ; C., etc., Co. v. State, 44 Md. 283; Wedgwood v. C. & N. R. R. Co., 44 Wis. 18.) Plaintiff had the right to understand and assume that the defendant had exercised care and diligence in providing and maintaining safe and suitable means and appliances for the service he was required to perform so as not to expose him to unreasonable risks or dangers. (Connelly v. Pollion, 41 Barb. 366; Noyes v. Smith, 28 Vt. 59; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Ford v. F. R. R. Co., 110 Mass. 240; Gibson v. P. R. R. Co., 2 Am. Rep. 500; F. W., etc., R. R. Co. v. Gildersleeve, 33 Mich. 133 ; T., etc., R. R. Co. v. Ingraham, 77 Ill. 309.) Defendant was obliged to provide safe and sound buffers as appliances to its cars in the first instance, and for any negligence in that respect the defendant is liable. (Ford v. F. R. R. Co., 14 Am. Rep. 598 ; Hough v. T. & P. R. R. Co., 21 Alb. L. J. 129.) The act of omission of the defendant to furnish in the first place safe and suitable buffers as appliances to said cars, was the act or omission of the defendant irrespective of any negligence of the inspectors or whoever placed the cars together in making up the train, and in this ease there is no middle ground. (Fuller v. Jewett, 80 N. Y. 52; Kirkpatrick v. N. Y. C. & H. R. R. R. Co., 79 id. 240; Kain v. Smith, 80 id. 458 ; Braun v. C., R. I. & P. R. R. Co., 22 Alb. L. J. 117; Tierney v. M. & L. R. R. Co., 32 id. 133.) The plaintiff had the right to understand and assume hat the defendant had exercised care and diligence in providing suitable means for the service he was required to perform, so as not to expose him to unreasonable risks or dangers, (Shaw v. Sheldon, 21 Weekly Dig. 489 ; Connelly v, Pollion, 41 Barb. 366; Ryan v. Fowler, 24 N. Y. 414; Jetter v. N. Y.

      & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Jones v. N. Y. C. & H. R. R. R. Co., 28 Hun, 364; O'Neil v. St. L. R. R. Co., 9 Fed. Rep. 357; Laning v. N. Y. C. R. R. Co., 49 N. Y. 533.) As matter of law only ordinary and reasonable diligence was required on the part of the plaintiff. (Gibson v. Erie Ry. Co., 63 N. Y. 449; Hough v. Ry. Co., 100 U. S. 217; Gibson v. P. R. Co., 2 Am. Rep. 499; Combs v. N. B. C. Co., 102 Mass. 572.) The plaintiff was not required to guard against perils and hazards in which the negligence of the defendant had placed him. (Hough v. Ry. Co., 100 U. S. 217; Booth v. B. & A. R. R. Co., 73 N. Y. 40.)
   Earl, J.

This action was brought to recover damages for personal injuries received by the plaintiff while in the discharge of his duties as a brakeman on a freight-train of the defendant. While trying to couple two cars he was crushed between them, sustaining serious injuries. Whether he was'chargeable with contributory negligence was clearly a question of fact for the jury, and the trial judge did not err in submitting it to them nor in his charge in reference thereto. The sole questions for our consideration are whether there was any evidence of the defendant’s negligence for submission to the jury, and whether there were any errors in the charge or refusals to charge of the trial" judge in reference thereto.

At the time of this accident the defendant’s road was so arranged that both broad and standard gouge cars could be run upon it in the same train, and there were both kinds of cars in the train upon which the plaintiff was acting as brakeman. The train broke in two in the night-time while under way, and the two cars which he was required to couple were of different gouge, and failing to make the coupling the draw-heads passed each other, and the bumpers not being wide enough to protect his person, he received the injuries complained of.

The evidence tends strongly to show that the main purpose of bumpers at the ends of freight cars is to protect brakemen while in the discharge of their duties between the cars, and that they should be sufficiently wide to protect the body of a brakeman when the cars come together. When the draw-heads meet they furnish the protection. But they are Hable to pass each other, and when they do, the brakeman who happens to be between the cars is exposed to danger, the only protection against which are the bumpers. When two cars come together which are of different gouge the draw-heads are more apt to pass each other, and hence in trains made up of cars of different gouge it is obviously more important that the bumpers should be well looked to, so that they may afford the protection for which they were intended.

In this case the evidence tended strongly to show that the bumper on each of the two cars which the plaintiff was attempting to couple, was made of a strip of wood only three inches thick nailed onto the car, thus leaving, when the cars came together, a space of only six inches, wholly insufficient for the protection of the brakeman.

The defendant was under obligation to its employes to exercise reasonable care and diligence in furnishing them safe and suitable implements, cars and machinery for the discharge of their duties, and upon the assumption that the defendant was responsible for the condition of these cars as if they were owned by it, there can be but little doubt that the evidence was ample to show that it had failed in its duty to the plaintiff. The defect was an obvious one, easily discoverable by the most ordinary inspection, and it would seem to be the grossest negligence to put such cars into any train and especially into a train consisting of cars of different gouge. But these two cars did not belong to the defendant. They belonged to other companies and came to it loaded, and it was drawing them over its road to their destination. They were in good repair, and the defects were in their original construction, they being just as they were originally made. The defendant claims that it was bound to receive and transport these cars over its road, and was under no responsibility for any defects in their structure, and that the plaintiff, upon entering into its employment, assumed all risks from such defects.

It is not necessary in this case to lay down with precision the rule which governs the responsibility of railroad companies as to the cars of other companies which it is engaged in transporting over its road. In Baldwin v. Railroad Co. (50 Iowa, 680) it was held that it does not constitute negligence foT a railroad company in the ordinary course of business to receive and transport the cars of other roads in general use which may not be constructed with the most approved appliances; and that the transportation or use of such cars by the company is one of the risks which an employe assumes in undertaking the employment. In Ballou v. Railroad Co. (54 Wis. 257) it was held that one railroad company receiving a loaded car from another and running it upon its own road is not bound to repeat the tests which are proper to be used in the original construction of such a car, but may assume that all parts of the car which appear to be in good condition are so in fact. The judge writing the opinion said: “In such case it would seem, upon principle, that the company so receiving a loaded car from another company is entitled to the benefit of the presumption that such car had been properly constructed of suitable material, and had passed the inspection of some one of ordinary skill in such matters, and that it was reasonably fit for the use to which it was devoted when so received.” In O'Neil v. Railroad Co. (9 Fed. Rep. 337) it was held that the defendant was bound that no car, whether its own or a foreign car, should be otherwise than reasonably and adequately safe for its employes to handle and to manage in the ordinary conduct of its business; that when a railroad company hauls over its road cars not belonging to it, if an accident occurs from their being not reasonably safe or adequate, under any circumstances, for the business for which they are'employed, and the accident occurs without the negligence of the employe, the company must respond thereto; and that the question in such a case is, was the car reasonably and adequately safe for the employe in handling the same? In Maokin v. Railroad Co. (135 Mass. 201) it was held that the defendant was bound as a common carrier to receive and draw cars brought to it from other roads, but that its obligatian to draw such cars did not extend to such as were unsafe, and that as to ears so received it simply owed to its employes the duty of suitable inspection. In Jetter v. Railroad Co. (2 Abb. Ct. App. Dec. 458) the defective car causing the injury belonged to another company, and the judge writing the opinion said : “ The party assuming to use it was responsible for its fitness to the use to which it was put. If the brakes were defective, the defendants were legally chargeable with any consequences that resulted from such defect while they were using the car for their own purposes,” and that “ railroad companies cannot escape responsibility from any defective carriages by borrowing them from one another.” In Jones v. Railroad Co. (28 Hun, 364), affirmed in this court (92 N. Y. 628), plaintiff’s intestate, a brakeman, was attempting to climb upon a freight car, and one of the iron rungs, which was defective, broke and he fell to the ground and was killed, and it was held that the defendant was liable although the ear belonged to another company. (See, also, Miller v. N. Y. C. & H. R. R. R. Co., 99 N. Y. 657.)

It will thus be seen that the utterances of judges as to the responsibility of one company for the defective cars of another company drawn over its road are not entirely harmonious, and yet we think all the authorities hold that the company drawing the cars of another company over its road owes, in reference to such cars, some duty to its employes. It is not bound to take such cars if they are known to be defective and unsafe. Even if it is not bound to make tests to discover secret defects, and is not responsible for such defects, it is bound to inspect foreign ears just as it would inspect its own cars. It owes the duty of inspection as master, and is at least responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspection. When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars; so much, at least, is due from it to its employes. The employes can no more be said to assume the risks of such defects in foreign cars than in cars belonging to the company. As to such defects the duty of the company is the same as to all cars drawn over its road. The rule imposing this responsibility is not an onerous or inconvenient or impracticable on'e. It requires before a train starts and while it is upon its passage the same inspection and care as to all the cars in the train.

The defect here complained of was obvious, easily discoverable by the most ordinary inspection, and it seems that it could have been easily remedied by simply hailing or fastening additional strips of wood to the ends of the cars,'so as to give the bumpers sufficient width to afford the protection needed and intended.

These rules of law were not violated by the trial judge in his charge when it is applied, to the facts of this case. He charged: “ In considering these questions you can lay out of view the fact that these cars did not belong to the company. I charge you that it was entirely immaterial whether this was a hired or borrowed car, or whether it belonged to the company or not. If the company placed it in operation and placed it before its employes for use, then they were held to liability if it was defective, arid if you shall find it to have been defective.” And upon the request of the defendant’s counsel he refused to charge, “If the ears between which the plaintiff was injured were those of another company than the defendant, it is not chargeable with negligence if they were improperly constructed or for any defects in their construction. The extent of the defendant’s duty was to see that they were in good repair while on its road.” While the charge, as made, may have been erroneous so far as it laid down a general rule, as applied to this case, where the defect complained of was plainly visible and easily discoverable by ordinary inspection without the application of any extraordinary or unusual tests, it was sufficiently accurate.

We have carefully considered the other points argued by the learned counsel for the defendant, but do not believe them to be well taken, and they require no particular attention here.

The judgment should be affirmed.

All concur.

Judgment affirmed.


text:
    William W. Scriver et al., Respondents, v. Eli B. Smith, Appellant.
    (Argued October 21, 1885;
    decided November 24, 1885.)
    Where there is an outstanding title to an easement, in premises conveyed with covenant of quiet enjoyment, which materially impairs the value of the premises and interferes with the use and possession of some portion thereof, the covenant is broken although there is no technical physical ouster.
    The right which the owner of land through which a natural stream of water flows, to have it flow from his land unobstructed, although having many of the incidents of an easement in the land below, is not in fact such ; it is a corporeal, not an incorporeal, right; it is a natural right, not dependent upon prescription or grant — an incident of property in, and parcel of the land.
    Where, therefore, the owner of land upon a stream conveys the same with covenant of quiet enjoyment, and subsequently an owner below underand by virtue of a paramount right raises the height of a dam upon his land and thereby floods the land conveyed, this is substantially an eviction and a breach of the covenant.

      Oreen v. Collins (86 N. Y. 246), distinguished.
    Appeal from, judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 3,1883, which affirmed a judgment in favor of plaintiffs entered upon an order overruling a deuiurerer to plaintiffs’ complaint. (Reported below, 30 Hun, 129.)
    This action was brought to recover damages for an alleged breach of covenant for quiet enjoyment contained in a deed.
    The material facts are set forth in the opinion.

      W. P. Cantwell for appellant.
    To constitute a breach of this covenant of quiet enjoyment there must be an eviction or ouster from the possession of the whole or a part of the premises. (Greenby v. Wilcocks, 2 Johns. 1; Kent v. Welch, 7 id. 258 ; Blydenburg v. Cotheal, 1 Duer, 176 ; Cruise, 378, note; 2 Greenl. Ev. 460; Rindskopf v. F. L. & T. Co., 58 Barb. 50; Emerson v. Propers, Etc., 1 Mass. 464; Marston v. Hobbs, 2 id. 437; Kelly v. Dutch Church, 2 Hill, 105; 4 Kent’s. Com. 471; Wood v. Forncrook, 3 T. & C. 303; Parkinson v. Sherman, 74 N. Y. 93; Sweetmam v. Prince, 26 id. 233.) An eviction is “ an actual dispossession, under a lawful claim by a paramount title.” (Kent v. Welch, 7 Johns. 258; Fowler v. Poling, 6 Barb. 165 ; Miller v. Watson, 5 Cow. 194; Talliard v. Wallace, 2 Johns. 395.) An ouster is an actual deprivation of the possession of a part of the land, or what is equivalent, a title which is capable of being used to deprive the grantee of his possession of a portion of the land covered by his deed.' (McMullin v. Wooley, 2 Lans. 395.) Enforcing an easement upon the property is not an eviction. ( Whitbeck v. Cook, 15 Johns. 484; Mitchell v. Warner, 5 Conn. 407; McMullin v. Wooley, 2 Lans. 393; Rawle on Covenants of Title, 114,115; 4 Kent’s Com. 471, note; 1 Duer, 196,197; Willard on Real Estate, 414; 1 Pars, on Cont. 110, 190, 200, note r ; Firrel v. Alder, Humph. 44; U. S. Ann. Dig. 1849,122, No. 73.) The paramount character of Douglass’ title is not shown by his judgment, the defendant not having been a party or privy to it. (Cowdrey v. Coif, 44 N. Y. 382; Abb. Trial Ev. 519.) Under the general word “ appurtenances,” nothing is included that is not actually and legally appurtenant to the land, and nothing that the grantor does not own or has not a right to convey. (Green v. Collins, 86 N. Y. 246; 26 Hun, 477; Philbrick v. Ewing, 97 Mass. 133.) The covenant, therefore, extends only to the land granted, and to those things which, as matter of legal right, belong to and pass with it. (2 Washb. on Beal Prop. 655, 607; Burke v. Nichols, 2 Keyes, 670.) The owner of a water-mill has an easement in the land below, for the free passage of the water from the mill, in the natural channel of the stream, accompanied with a right to enter upon the land for the purpose of clearing out the stream and removing obstructions to the free flow off the water. (AngelL on Water-Courses, note 3 to § 337; Prescott v. Williams, 5 Metc. 429 ; Cary v. Daniels, id. 236; 4 U. S. Dig. [supplement], 604, Nos. 30, 34; Adams v. Conover, 87 N. Y. 422.) Mere limitations or restrictions upon the use of the land are not evictions. The title remains in the grantee, and the possession. The easement may be a great incumbrance. But a covenant of warranty is not a covenant against incumbrances. And a covenant of quiet enjoyment is practically the same as a covenant of warranty. (Boreel v. Lawton, 90 N. Y. 296; Rawle on Covenants of Title, 144; Whitbeck v. Cook, 15 Johns. 483.) Since the burden of proof is upon plaintiffs to show ignorance of the nature and extent of Douglass’ rights when they purchased, as against the presumption of knowledge on their part an averment of ignorance is material and without it the complaint is defective. (Bennett v. Buchan, 76 N. Y. 386; Hymes v. Esty, 36 Hun, 147; Williamson v. Brown, 15 N. Y. 354; Reed v. Gannon, 50 id. 345; Pendleton v. Gray, 2 Paige, 202; Hawley v. Cramer, 4 Cow. 717; Baker v. Bliss, 39 N. Y. 70; Brown v. Volkening, 64 id. 76; Kellogg v. Smith, 26 id. 318; Youngs v. Wilson, 27 id. 351; Sigourney v. Mann, 7 Conn. 324; Abbott’s Trial Ev. 520, under Covenants for Title, citing Spoor v. Green, L. R., 9 Ex. 99; 8 Moak’s Eng. Rep. 540; Oldfields v. Round, 5 Ves. 508; Dart on Vend. and Purch. 369.) Parol-evidence of existing defects may be given to limit the extent of a covenant. (Bennett v. Buchan, 76 N. Y. 391; Jennings v. Chenango Co. Mut. Ins. Co., 2 Den. 75 ; Bidwell v. N. W. Ins. Co., 24 N. Y. 302; Van Schaick v. N. F. Ins. Co., 68 id. 434.) Such evidence is not admissible to extend the terms of the covenant. (Green v. Collins, 86 N. Y. 254; McMullin v. Wooley, 2 Bans. 395; Manning v. Smith, 6 Conn. 289; Gayetty v. Bethune, 14 Mass. 49; Plant v. James, 5 Barn. & Ad. 791.) If a man buys land which is covered with water, the water is not necessarily even an incumbrance, in the legal sense of the word; and it is not a breach of a genuine covenant against incumbrances, that, prior to the conveyance, the grantor himself had lawfully erected a dam and thereby caused water to flow upon the granted premises. (Kidder v. George, 18 N. H. 511; Kurtz v. McCune, 22 Wis. 628; Alexander v. Kerr, 2 Rawle, 83; Knapp v. White, 23 Conn. 529; Stetson v. Veazie, 11 Me. 408.) A lease, with its covenants, rights, privileges and obligations, extends only to the premises demised, and does not apply to other property, whether adjoining or not. (Johnson v. Oppenheim, 55 N. Y. 280; White v. Mealio, 37 N. Y. Super. 72; Howard v. Doolittle, 3 Duer, 464; Sherwood v. Seaman, 2 Bosw. 127; Myers v. Gemmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. 316; Kramer v. Cook, 7 Gray, 550; Williams v. Hayward, 1 El. & El. 1040; Kurtz v. McCune, 22 Wis. 627; Sabine v. Johnson, 35 id. 185; Smith v. Hughes, 50 id. 620.)

      Edward-C. James for respondents.
    Upon a conveyance of land, whatever is in use for it, as an incident or appurtenance, passes with it, whether the words “ with the appurtenances ” are used or omitted. (Huttemier v. Albro, 18 N. Y. 48 ; Comstock v. Johnson, 46 id. 620; Voorheas v. Burchard, 55 id. 102; Simmons v. Cloonan, 81 id. 557 ; Green v. Collins, 86 id. 253 ; Adams v. Conover, 87 id. 422; Corning v. T I. & N. Factory, 40 id. 191; Brown v. Bowen, 30 id. 519; Pixley v. Clark, 35 id. 521; Stout v. Adams, 2 Scam, [Ill.] 67.) The covenants in a deed are designed to protect the grantee in the enjoyment of his property, in the manner and for the particular purpose intended by the parties at the time of executing the deed. (Adams v. Conover, 87 N. Y. 428 ; Comstock v. Johnson, 46 id. 615; Voorhees v. Burchard, 55 id. 102; Green v. Collins, 86 id. 246; Rawle on Covenants for Title [4th ed.], 181; Peters v. Grubb, 21 Penn. St. 455 ; Wilson v. Cochrane, 46 id. 229.) Considering plaintiff’s purchase simply as the purchase of a lot of land, it is plain that the exercise of a paramount outstanding right in a third person, to use the said land, or any part of it, for the bed of a mill pond, and to cover it permanently with the waters of a river, accumulated and held by means of a mill-dam situate on the adjoining lot below, is an eviction pro tanto. (Shattuck v. Lamb, 65 N. Y. 503 ; Rea v. Minkler, 5 Lans. 196; Adams v. Conover, 87 N. Y. 422; Russ v. Steele, 40 Vt. 310; Clark v. Conroe, 38 id. 496; Lamb v. Danforth, 59 Me. 322; 1 Bouv. Law Diet. 543; Pumpelly v. G. B. Co., 13 Wall. 166; Eaton v. B. C. & M. R. R. Co., 51 N. H. 185; G. R. B. Co. v. Jarvis, 30 Mich. 321; Hooker v. N. H. & N. Co., 14 Conn. 146; Rowe v. G. B.

      Corp., 21 Pick. 344 Nevins v. Peoria, 41 Ill. 502; Cooley’s Const. Lim. 542, 545; Canal Comrs. v. People, 5 Wend. 452; Story v. NY. Y. El. R. R. Co., 90 N. Y. 122; Matter of N. Y. Él. R. R. Co., 36 Han, 17.) Any interference by an adjoining owner on the stream, whether above or below, under paramount title, whereby the plaintiffs were permanently deprived of the head of water upon their own premises, as it then existed, is a breach of such covenant and an eviction pro tanto. (Adams v. Conover, 87 N. Y. 422; Rea v. Minkler, 5 Lans. 196 ; Shattuck v. Lamb, 65 id. 510.) On demurrer all reasonable intendments will be indulged in in support of the pleading demurred to. (Lorrillard v. Clyde, 86 N. Y. 384.) A covenant, under seal, cannot be discharged by a paroi agreement before breach. A deed cannot be contradicted in its terms, or legal effect, by paroi evidence. (Suydam v. Jones, 10 Wend. 180; Mott. Palmer, 1 N. Y. 564; Hubbard v. Norton, 10 Conn. 422; Sargent v. Getterson, 13 N. H. 273; Lloyd v. Quimby, 5 Ohio, 165 ; Taylor v. Cillman, 25 Vt. 413.)
   Earl, J.

On the 25th day of March, 1875, the defendant conveyed to the plaintiffs a parcel of land situate in Franklin county, described in the deed as follows : “ Commencing at a point forty rods south and forty rods east from the north-west corner of said lot No. 44, in the east line of a forty-acre lot formerly owned by Philip Bryant, and at the south-west corner of land formerely owned by George W. Douglass, .running from thence south in the east line of the Bryant lot to the land leased or owned by the Northern ¡Railroad Company; thence east in the north line of said railroad to the west bounds of land formerly owned by John Mitchell and now owned by Henry Mitchell; thence northerly in said Mitchell’s line to the bridge or highway; thence westerly in the center of the highway until it strikes the line dividing the land of C. J. Morgan from that of the party of the first part; thence westerly along said line to the place of beginning, being all of the land owned by the party of the first part south of the highway and up to the north line of the railroad, excepting and reserving the old house now standing on said land in the sand bank west of the river, with the appurtenances, and all the estate, title and interest therein of the said parties of the first part.” The deed contained a covenant in the following language : “ And the said Eli B. Smith does hereby covenant and agree to and with the said parties of the second part, their heirs and assigns, that the premises thus conveyed in the quite and peaceable possession of the said parties of the second part, their heirs and assigns, he will forever warrant and defend against any party whomsoever lawfully claiming the same or any part thereof.” It is alleged in the complaint that the parcel of land described contained a grist and flouring-mill with the water power and mill privileges appurtenant; that it was known as the John Bush Grist and Flouring-Mill property and had been used in connection with the water power afforded by the river mentioned in the deed' as a grist and flouring-mill for many years; that its value consisted almost wholly in its use for that purpose; that the plaintiffs have not been permitted peaceably to occupy and enjoy the premises or the mill property, privileges and water power, but that, on the contrary,- one Douglass at the time of the conveyance was the lawful owner of a certain- mill-dam in the river below the premises conveyed to the plaintiffs and of the right to raise the height of such dam eight and one-half inches above the height at which it was maintained at the time of the conveyance to the plaintiffs, and that having such right he did raise his dam to such height and did thereby cause the water of the river to set back upon the premises conveyed to the plaintiffs, and to flood a portion thereof, and to impede the discharge of water from their wheel-pit and race-way, and the operation of their mill, and did thus evict them from a portion of their premises, deprive them of the use and enjoyment thereof, and cause them other damage; and it is also alleged that after due notice to the defendant, and with his approval, in order to test the right of Douglass so to raise his dam, the plaintiffs brought an action against him, in which he established his right so to raise and maintain the dam.

By his demurrer to the complaint the defendant admitted all these allegations of fact, and the sole question for our determination is, whether the facts alleged showed a breach of the covenant contained in defendant’s deed, his contention being that the facts failed to show such an eviction from the premises conveyed, or some portion thereof, as was absolutely essential to the maintenance of the action.

There can be no dispute that the covenant for quiet enjoyment can be broken only by an eviction, actual or constructive, from the premises conveyed, or some portion thereof. ‘ This is not a mere technical rule, having no foundation in principle or justice, but it has its foundation in the reason that the covenantee, who has obtained possession, should not be permitted to recover for breach of the covenant for a mere failure or defect of title, so long as he is left in possession, as he may never be disturbed and thus never suffer damage. The covenantor should, therefore, be held liable, not only in all cases coming technically within the letter of the rule, but also in all cases falling really within its reason. It has, therefore, been held that where the covenantee has not been able to obtain the possession of the premises conveyed on account of a paramount outstanding title, and thus has in fact never been ousted from, the possession, he may yet maintain an action for the breach of the covenant. (Shattuck v. Lamb, 65 N. Y. 499.) It has also been held that where there is an outstanding title to an easement in the premises conveyed, which materially impairs the value of the premises and interferes with the use and possession of some portion thereof, the covenant is broken although there is not a technical physical ouster from the actual possession of any portion thereof. (1 Bouvier’s Law Diet. 543; Rea v. Minkler, 5 Lans. 196; Adams v. Conover, 87 N. Y. 422; Clark v. Estate of Conroe, 38 Vt. 469; Russ v. Steele, 40 id. 310; Lamb v. Danforth, 59 Me. 322.)

In this case Douglass had a paramount right to an easement to set back the water of the river and to flood the land conveyed, and in the exercise of that right he did cause a portion of the land conveyed to be flooded and covered with water, and of such land the plaintiff was deprived of the use, and really and practically of the possession, and thus there was substantially an eviction. Suppose Douglass, in the exercise of an easement owned by him, had flooded the whole of plaintiffs’ land to the depth of one foot or ten feet, thus destroying the water power and depriving the plaintiffs of any beneficial use or possession of the land, could it be maintained that there had been no eviction, and, therefore, no breach of the covenant for quiet enjoyment ? To hold that it could would be to disregard the reason of the rule, and to sacrifice substance for the mere form of words in which the rule is generally expressed. So far as one permanently floods the land of another there is a physical invasion of the land and a practical ouster of the possession thereof; and in a real sense such land is taken from the owner, and so it has been held. (Pumpelly v. Green Bay Co., 13 Wall. 166; Eaton v. R. R. Co., 51 N. H. 504; Story v. N. Y. Elevated R. R. Co., 90 N. Y. 185.)

Our argument may receive some re-enforcement also from the history of real estate law. Anciently, by the feudal constitution, if the vassal’s title to the fee which he had received at the hands of his lord, and for which he was to render certain duties, failed, he had the right to call upon his lord in a proper form of action for other land of equal value. The modern personal covenants contained in deeds, which are not more than two hundred years old, are a substitute for this ancient right. Now, instead of other lands, the grantee recovers upon his covenants damages for the land from which he was ousted or to which his title fails. Suppose some feudal lord had given to his vassal land which another person subsequently flooded under a paramount right, can it be doubted that the lord could have been compelled to give other land of equal value % And so now, instead of land, the grantor should upon his covenant of warranty be compelled to give damages.

We think, therefore, that so far as Douglass, under paramount right, invaded the land conveyed to the plaintiffs and flooded the same with water, there was an eviction sufficient for the maintenance of this action.

But there is still another view which may be taken of this case. Every owner of land through which a natural stream of water flows has the right to have it flow from his land unobstructed in its natural channel, unless such right has been curtailed by grant or adverse possession. This is said to be a natural right publiai juris. The learned counsel for the defendant contends that this right rests upon an easement which an upper owner upon a stream has in the lands below him for the passage of the water over such lands in its natural channel, and his contention has some authority for its support. (Cary v. Daniels, 5 Metc. 236; Prescott v. Williams, id. 429.) Such rights have some semblance to easements, and no harm or inconvenience can probably come from classifying them as such for some purposes. But they are not in fact real easements. Every easement is supposed to have its origin in grant or prescription which presupposes a grant, and it is quite absurd to suppose that the owner of land at the head of a stream has an easement by grant or -prescription for its flow over all the land of the riparian owners for many miles to its mouth. Would any of the usual covenants in a deed be violated because a natural stream of water flowed through the land and the upper owners, therefore, had an easement in such land % Clearly not. In Washburn on Easements, 19, it is said : “The term ‘natural easements,’ as applicable especially to the case of flowing water, is often made use of by courts of common law and is not likely to mislead the reader, inasmuch as the context usually shows in what sense the term is employed. But as will appear hereafter that an easement when technically considered is an interest which one man has in another’s estate by grant or its equivalent, prescription, it seems at first thought to be inconsistent to characterize what belongs to an estate as inseparably incident thereto and forming part and parcel thereof, by the name of "easement or servitude. It may be in many respects, and perhaps most respects, like an easement and may be treated accordingly, and yet will hardly come within the requirements of what constitutes an easement at common law.” Again at page 276 the learned author, speaking of the flow of water in natural streams, says : “ The right of enjoying this flow without disturbance or interruption by any other proprietor is one jure naturae and is an incident of property in the land, not an appurtenance to it, like the right he has to enjoy the soil itself in its natural state unaffected by the tortious acts of a neighboring land-owner. It is an inseparable incident to the ownership of land, made by an inflexible rule of law an absolute and fixed right, and can only be lost by grant or twenty years adverse possession.” In Angelí on Water-Courses (§ 90), it is' said: “ The right to the use of the flow of water in its natural course and to the maintenance of its fall on the land of the proprietor is not what is called an easement, because it. is inseparably connected with and inherent in the property in the land; it is a parcel of the inheritance and passes with it.” In Stokoe v. Singers (8 Ell. & Bl. 31), Erle, J.,. said: “ The right to the natural flow of water is not an easement, but a natural right.” In Johnson v. Jordan (2 Metc. 234), Shaw, Ch. J., speaking of the right of an owner of land through which a stream of water' flowed, to have the water come to and pass from his land unobstructed, said: It is inseparably annexed to the soil and passes with it, not as an easement, not as an appurtenance, but as parcel.” Easements proper are incorporeal rights, but the right to have water flow in its natural channel is a corporeal right.

So the right to have the water flow to and from the land conveyed to the plaintiffs was a corporeal right, and part and parcel of-the premises granted, and was, therefore, covered by the deed. The plaintiffs were disturbed, in the possession of the parcel thus granted, by Douglass under his paramount right, and in part evicted therefrom and, therefore, there was a breach of the covenant for quiet enjoyment. They bought a water power. That was a corporeal right covered by the deed, and they were evicted from a portion thereof.

These views are in no dégree in conflict with any thing decided in the case of Green v. Collins (86 N. Y. 246.) There the easement in - question was an artificial one, an incorporeal hereditament, and it was held that because it did not belong to the grantor it did not pass as appurtenant to the land granted, was not covered by the deed, and hence was not within the scope of the covenant for quiet enjoyment. That case rests upon ample authority, and the views herein expressed show that it cannot apply to such a case as this.

The learned counsel for the plaintiffs has relied much upon the case of Adams v. Conover (supra.) To some extent that case is an authority for his contention. There, as here, the plaintiff bought water power, a corporeal right, and he was dispossessed of some of it. He bought a dam at a certain height. That was part and parcel of the premises which the deed professed to convey, and he was obliged to remove some of it, and thus he was actually deprived of a portion of the premises covered by his deed. That case too rests upon ample authority. Suppose one takes a deed with a covenant for quiet enjoyment of land with a house thereon, and it, turns out that a third person has title to the house which he removes. Can it be doubted that the grantor would be liable on his covenant for quiet enjoyment? (Combs v. Fisher, 3 Bibb, 51; Funk v. Creswell, 5 Iowa, 88; West v. Stewart, 7 Penn. St. 122; Mott v. Palmer, 1 N. Y. 564.) If, in the case supposed, the house is three stories high, and in consequence of covenants with adjoining land-owners there is no right to maintain more than two stories, so that the grantee is obliged to remove the third story, would there not be a dispossession and eviction of so much of the premises conveyed, and thus a breach of the covenant?

It has sometimes been supposed that there was a conflict between the cases of Green v. Collins and Adams v. Conover. The distinction between the two cases was clearly pointed out in the opinion written in the last case. In the one case the grantee got all that was covered by his deed and there was no breach of warranty. In the other case the grantee did not get all that was covered by his deed, and there was a breach of warranty. The distinction between the two cases is as wide as a gulf, and it would seem that any diligent, unprejudiced, competent investigator should not fail to perceive it.

The claim is also made, on behalf of the defendant, that the plaintiffs must be presumed to have known of the paramount right of Douglass at the time of their purchase, and hence that they cannot now complain of its existence. But it does not appear that that right was apparent, and there can be no presumption that they knew of it. If such knowledge made any difference, it was matter of defense which it was incumbent upon the defendant to establish.

We, therefore, conclude that the judgment should be affirmed, with costs, with leave to the defendant to answer on payment of the costs within twenty days after their adjustment.

All concur.

Judgment accordingly.


author: Miller, J.

text:
    Charles G. Havens et al., Respondents, v. Benjamin A. Willis, Impleaded, etc., Appellant.
    (Argued October 13, 1885;
    decided November 24, 1885.)
    Upon assignment of certain bonds, and of a mortgage given as secui'ity therefor, the mortgagees guaranteed payment. In consideration of the discontinuance of an action upon one of the bonds which was executed by R., and of other considerations, one E. executed to the assignee a mortgage upon his lands as additional security. Upon foreclosure of the original mortgage, a deficiency arose, which the guarantors paid upon assignment of the second mortgage. In an action to foreclose the second mortgage, defendant W., who was the owner of the equity of redemption, defended on the ground that as to him the guarantors as well as the obligors were the principals for whose liabilities his lands were security, and the former having simply discharged their own obligation, the security was released. Held untenable; that such security was an independent one having no reference to the obligation of the guarantors; that the latter, upon payment of the deficiency, were entitled to be subrogated to the security, and had a legal right to enforce the same.
    Appeal by defendant, Benjamin A. Willis, from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 30,1883, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term.
    This action was brought to foreclose a mortgage executed jointly by Benjamin F. Raynor and Edwin F. Raynor, but upon lands owned by the latter, to Mary Griffin.
    It appeared that upon the conveyance of certain premises to James -W. Gillies, which were in fact purchased on the joint account of the grantee, Benjamin F. Raynor and William H. Raynor, each of the three executed to the grantors, Havens, Godwin and Peck, his individual bond for his share of the purchase- money unpaid, all of which were secured by mortgage on the lands conveyed, executed by Gillies. The obligees assigned the bonds and accompanying mortgage to Mary Griffin, guaranteeing the payment of the bonds. By the terms of the bond given by Raynor, in case of default in the payment of interest thereon for a specified term, the principal became due, at the option of the holder. Default having been made, Mrs. Griffin brought an action thereon, setting forth her election to consider the principal due, etc. An arrangement was subsequently made that in consideration of the giving of a mortgage by Edwin F. Raynor, son of Benjamin F. Raynor, on lands owned by the former, as additional security for the payment of the bond of the latter, the suit should be discontinued and the forfeiture waived. In pursuance of this agreement, the mortgage in question was given, Benjamin F. Raynor joining therein. It contained these recitals.
    “ Whereas, The party of the second part holds a bond, securing payment of $24,000 and interest, dated the 30th day of June, 1873, executed by Benjamin F. Raynor to George H. Peck, Joseph H. Godwin and Charles G. Havens, and by them assigned to her by assignment containing their covenant of guaranty, and which bond (with others) was secured by a certain mortgage executed to said obligees by James W. Gillies and wife, and also assigned to and held by the party of the second part; and, whereas, the interest due on the 30th day of June last past being in arrears, an action was commenced and is pending for the recovery by the party of the second part from the said Benjamin F. Baynor, of the principal sum so secured by such bond, and the interest thereon from the 30th day of December, 1875; and, whereas, at the request of the party hereto of the first part, and of the said Benjamin F. Baynor, the party of the second part covenants to accept the additional security of these presents, and to thereupon waive the right to now demand payment of the said principal, by reason of such default in payment of the interest due on the 30th day of June last, and to discontinue the said suit on prompt payment of the said interest and costs. Now this indenture witnesseth,” etc.
    The discontinuance was consented to by the guarantors. The said bond, when the principal thereof fell due, was not paid, and an action to foreclose the original mortgage was instituted. The mortgaged premises were sold under the judgment therein, and the net proceeds of sale apportioned and applied upon the bonds secured thereby, leaving a deficiency, which was paid by the guarantors, Godwin, Havens and the executors of Peck, plaintiffs herein, upon assignment to them of the foreclosure j udgment and the mortgage in suit. Defendant Willis, to whom the mortgaged property had been conveyed, alone defended.

      Benjamin A. Willis for appellant.
    The liability of a guarantor arises solely from his engagement, and not from the consideration, and no recovery can be had unless the cause of action falls within the guaranty, however minute the differences between them. The obligation should be construed strictly and favorably to the surety if the terms justify. (Ray v. Groves, 6 Binn. 376; Merchants R. v. Heard,, 5 Cush. 461; Hunt v. Smith, 17 Wend. 479 ; Bigelow v. Benton, 14 Barb. 128 : Russell v. Clark, 7 Cranch, 79 ; Ludlow v. Simond, 2 Cai. Cas. 1; Walsh v. Bailee, 11 Johns. 180; Myers v. Edge, 7 Term B. 254; Rogers v. Kneeland, 10 Wend. 218; Leggett v. Humphreys, 21 How. [U. S.] 66.) In this case, as between the plaintiffs and the maker of the additional mortgage,.there can be no equities in favor of the former. (Barnes v. Mott, 64 N. Y. 397 ; Hinckly v. Kreity, 58 id. 583; Burns v. Huntington Bk.,
      1 Penn. 395 ; Pott v. Nathans, 1 W. & S. 155 ; McCormick v. Irvin, 35 Penn. St. Ill.) Whatever was the effect of the mortgage in suit upon the rights or remedies of the plaintiffs they were not thereby discharged, nor can they be heard to complain of it because they assented to it. ( Wright v. Storrs, 32 N. Y. 700.) If there should be separate bonds given, with the different sureties, and one bond is intended to bo subsidiary to and a security for the other, in case of default in payment of the latter, and not to be a primary, concurrent security, in such a case the sureties in the second bond would not be compelled to aid those in the first bond. (Nicholson v. Revell, 4 Ad. & Ell. 675 ; Pledge v. Buss, Johns. Eng. Ch. 663; Story’s Eq. Jur., § 498 ; Leonard v. Vredenburgh, 8 Johns. 29; Farlee v. Cleveland, 4 Cow. 432; Emerson v. Slater, 22 How. 28 ; Bowditch v. Green, 3 Metc. 360 ; Parks v. Hall, 2 Pick. 210; Overlook v. Bills, 8 Greenl. 383; Story on Bailments, § 339 ; Crafts v. Trillon, 2 Moore, 411; Burge on Suretyship, 42, 386 ; Edwards on Bills, 570 ; Newcombe v. Raynor, 21 Wend. 108; Craythorne v. Swynburne, 14 Ves. Jr. 161; Remington v. Staats, 1 Supr. Ct. 394; McDonald v. Magruder, 3 Peters, 470 ; Harris v. Warner, 13 Wend. 401; Fell on Suretyship [2d Am. ed.], 307; Norton v. Coon, 3 Cow. 132.) The additional mortgage to Edwin F. Raynor was not assignable, so as to vest any right of action or remedy upon it in the assignee; it is not a negotiable security by its terms. In the instrument itself appears a limitation ; it is by its very terms, by express words, a security to Mary Griffin personally, to her alone and for her benefit alone. Such being the case, the assignment to plaintiffs was void and conferred no right upon them. (Smith v. Starr, 4 Hun, 123; Barlow v. Myers, 64 N.Y. 41; Wheat v. Rice, 20 N. Y. Weekly Dig., No. 13; 1 Vera. 196 ; 2 id. 293 ; 3 Russ. 424 ; 3 Merivale, 272; Smith v. Dickenson, 6 Humph. 261; Lamoreaux v. Hewitt, 5 Wend. 307; Story on Notes, § 484 ; 2 Am. Lead. Cas. 314; 2 Rob. Pr. [N. S.] 298; Daniels on Neg. Paper, § 1774; Evansville Bk. v. Kaufman, 93 N. Y. 279; Robbins v. Bingham, 4 Johns. 476 ; Turner v. Davies, 2 Esp. N. P. C. 478; Theobold, 197 ;. Gibbs v. Bryant, 1 Pick. 118 ;
      Longley v. Griggs, 10 id. 121; Vrooman v. Turner, 69 N. Y. 284; Garnsey v. Rogers, 47 id. 233 ; Merrill v. Green, 55 id. 270.) The additional mortgage of Edward F. Raynor contains no personal covenant, no acknowledgment of indebteds ness, no promise to pay under such conditions. With such elements in the case, plaintiffs cannot maintain their action. (Culver v. Sisson, 3 Comst. 264; Weed v. Coville, 14 Barb. 242 ; Briscoe v. King, Cro. Jac. 281; Suffield v. Baskerril, 2 Mod. 36; Smith v. Stuart, 6 Blackf. 162 ; Scott v. Field, 7 Watts, 360 ; Salisbury v. Phillips, 10 Johns. 57; Turk v. Ridge, 41 N. Y. 407.) As it was not proved on the trial, or alleged in the complaint, that an execution upon the judgment was issued or returned unsatisfied, it was incompetent for the court to make a decree of foreclosure. (Schaffer v. Doscher, 72 N. Y. 491; Code of Civ. Pro., §§ 1629, 1630; Shuefeldt v. Shuefeldt, 9 Paige, 137; Bache v. Purcell, 51 How. Pr. 270; Ward v. Fryers, 19 Wend. 493.) Plaintiffs should have obtained leave to sue. (Schaeffer v. Doscher, 72 N. Y. 491; Eg. L. Ins. Co. v. Stevens, 63 id. 342; Suydam v. Bartle, 9 Paige, 294; In re Collins, 17 Hun, 289; Engle v. Underhill, 3 Edw. Ch. 250.) Benjamin F. Raynor was a party defendant in the original foreclosure ; no decree of deficiency was asked against him; having no interest in the controversy and not being held for any personal liability, he took no precaution to protect his interests. Such being the case, all claim and demand against him, for which the additional mortgage is holden, was waived and extinguished. (Cook v. Grant, 1 Paige, 411; Stowell v. Chamberlain, 60 N. Y. 276 ; Ferris’ Case, 6 Coke, 7 ; Bigelow v. Winsor, 1 Gray, 299 ; Bagut v. Williams, 3 B. & C. 235 ; Cowper v. Smith, 4 M. & W. 519; 2 Pars, on Flotes and Bills, 238 ; Cage v. Cassidy, 23 How. [U. S.] 109 ; Clark v. Mackin, 95 N. Y. 352; Twombley v. Cassidy, 82 id. 155 ; 1 Story’s Eq. Jur., § 325 ; Pardee v. Van Aukin, 3 Barb. 534 ; Ellsworth v. Lockwood, 42 N. Y. 89; Wright v. Morley, 11 Vves. 12; Parsons v. Briddock, 2 Vern. 608.) The court erred in admitting the evidence of payment of the deficiency by the plaintiffs. (First Nat. Bk. v. Wood, 71 N. Y. 411.)

      Samuel Hand for respondents.
    The plaintiffs had a right to foreclose the E. F. Raynor mortgage, not only as against Willis, the grantee of the mortgagor, but the whole world. They were entitled to enforce it to indemnify themselves. (Hayes v. Ward, 4 Johns. Ch. 123; Townsend v. Whitney, 75 N. Y. 425 ; Vose v. F. R. R. Co., 50 id. 369.) Plaintiffs as guarantors and sureties of the bond to Mrs. Griffin having paid the debt, even though they had taken no assignment, the law would operate an assignment by subrogation and give them all the rights, remedies and securities which Mrs. Griffin had, and entitle them to collect the amount out of any subsequent sureties. (Hinckley v. Kreitz, 58 N. Y. 583 ; Barnes v. Mott, 64 id. 403.) Edwin F. Raynor sustains toward Mrs. Griffin the relation of surety for a debt, Benjamin F. Raynor being the principal debtor. (Barnes v. Mott, 64 N. Y. 397 ; Hinckley v. Kreitz, 58 id. 583.) Sureties becoming such at different times or by different instruments, for same debt, are co-sureties and liable to each other for contribution—this, too, although the sureties are ignorant of each other’s engagements. (Wells v. Miller, 66 N. Y. 255.) The giving of the $60,000 bond and mortgage in payment of the deficiency cannot be considered as so much money paid for the defendants’ use. (Cummings v. Hackley, 8 Johns. 156; First Nat. Bk. v. Wood, 71 N. Y. 411.) Authority to sue was at the very basis of the right to sue; there was no right of action until the court had given one. (Schaffer v. Doscher, 72 N. Y. 491; McKenna v. Robinson, 84 id. 105 ; Earle v. David, 86 id. 634.) Edwin F. Raynor was entitled to full benefit of all collateral securities held by the creditor, which the creditor had taken as an additional pledge of her debt. (3 Kent’s Com. 126 ; 1 Story’s Eq. Jnr., § 325; Gary v. Bernard, 56 N. Y. 50 ; Pitts v. Condon, 2 N. Y. 352.) The failure of plaintiff in the original foreclosure, either to demand or recover a judgment for deficiency against Benjamin F. Raynor, the principal debtor, extinguished the claim against the principal debtor and released the debt, and the release of the debt discharged the surety. (Cowper v. Smith, 4 M. & W. 519; Stowell v. Chamberlain, 60 N. Y. 272 ; La Guen v. Gouverneur, 1 Johns. Cas. 430; Cook v. Grant, 1 Paige, 411; Eq. L. Ins. Co. v. Stevens, 63 N. Y. 341.)
   Miller, J.

The mortgage which is the subject of foreclosure in this case was executed as an additional security to another mortgage, which had been previously executed and assigned to one Mary Griffin, the payment thereof having been guaranteed by Messrs. Peck, Godwin and Havens, to whom it was originally given. Mrs. Griffin by foreclosure of the last-named mortgage realized a portion of the money secured, and a deficiency remained of $11,563.14. For this amount the assignors of thennortgage, as guarantors, were sureties to her. They paid this deficiency to her, taking an assignment of the mortgage now in suit, and all the securities, rights and remedies for such deficiency.

In accordance with their obligation as guarantors, upon well-settled principles of law, they were clearly entitled to be subrogated to all the securities which were held as collateral to the debt secured by the original mortgage. The mortgage involved in this action was obtained by Mrs. Griffin as security from B. F. Raynor for a demand she held against him, and when the guarantors paid the debt they were entitled to the assignment of the same. It is not important to consider the reasons which induced E. F. Raynor to unite with B. F. Ray-nor, the debtor, in the execution of the mortgage which was upon the lands of the former; it is quite sufficient that the creditor for a good consideration took this additional security for the payment of her demand against B. F. Raynor and held the same when the guarantors of that debt paid it and received from Mrs. Griffin an assignment of this mortgage. They thus became entitled to all benefits arising from the security and had a legal right to enforce the same in order to protect themselves against the deficiency they were legally liable to pay.

The fact that the appellant became the owner of the mortgaged premises after the mortgage had been executed confers upon him no “right to claim that the grantors of the mortgage, assigned by them to Mrs. Griffin, were not entitled to enforce their lien. The appellant purchased subject to this lien, and he occupies no position, as surety or otherwise, which authorizes him to claim that the guarantors named have no remedy by virtue of the mortgage assigned to them. This mortgage was an additional or a further security, and in the hands of the original mortgagee it could have been enforced at any time after it became due. The remedy most certainly would be complete when there was a deficiency arising upon a sale under the mortgage to which it was collateral or additional security. The plaintiffs, by virtue of the assignment to them and by operation of law, occupied precisely the same position as Mrs. Griffin, and are entitled to invoke the same remedies. Their right against the appellant is clear and unquestionable, and we are unable to perceive that any defense exists against the mortgage. The claim of the appellant rests upon the hypothesis that the mortgage on its face declares it was a supplemental security, additional to the bond of Raynor, the mortgage of Gillies and the guarantee of the plaintiffs, and that it thereby became an additional and not a new security substituted for others, discharging or impairing others, but a surety for all before who were principals as to E. F. Raynor: We think there is no foundation for this position, and that the doctrine of principal and surety has no application to the facts presented. In no sense and upon no sound principle can the mortgagor be regarded as a surety for the original mortgagor or for the guarantors of the mortgage on the assignment thereof to Mrs. Griffin. The security taken was a new, independent and additional one, having no reference to the obligation of the guarantors. It was the same as if the mortgagor had procured other securities to be assigned to Mrs. Griffin with a view of adding to the strength of that already given, and in such a case there can be no dispute as to the right of the holder or assignee to pursue his remedy upon either of the securities without regard to and independent of the rights of those who are connected with the other securities. The 'holder' would have an undoubted right to collect the one or the other as he might deem best for the promotion of his interest. No subsequent incumbrancer or owner of premises included in the mortgage assigned or given as an additional security has the right to claim that he is a mere surety of the guarantors upon a prior mortgage on other premises.

It is very plain that Messrs. Peck, Godwin and Havens, being guarantors and entitled to subrogation as such, independent of any assignment, would have the same rights which were enjoyed by Mrs. Griffin, and would be fully authorized to collect the amount due out of any additional security or any subsequent surety taken by her. This rule would certainly apply as the mortgage was given as an additional consideration for the benefit of B. F. Raynor, the party who originally and throughout was bound to pay the debt, while Peek, Godwin and Havens only became guarantors on a private sale of the mortgage to Mrs. Griffin, and not in any respect for the benefit of B. F. Raynor nor in any way connected with him.

It would be enlarging the doctrine as to the liability of persons as sureties beyond any adjudicated case and to a very great extent, to hold that the appellant, as a subsequent owner of the land after the lien had been created, under the circumstances presented, was entitled to be relieved from the effect of the mortgage.

The other questions raised which demand special attention are sufficiently considered in the opinion of the General Term.

The judgment’ should be affirmed.

All concur, except Earl, J., dissenting; and Rapallo, J., not voting.

Judgment affirmed.