Simmons v. Cloonan

By the Court

By the contract entered into between Hasbrouck and Brown, the former agreed to convey to the latter the premises described in the complaint. Brown entered into the possession under the agreement, built a mill, which he operated, using the water which had been provided by Hasbrouck by the construction of Hasbrouck avenue; and after this was done the deed was executed to Brown’s assignee. *351This conveyance merged all prior cotemporaneous agreements which had been made, and it is evident that Brown bought the premises intending to use them for milling purposes, and that Hasbrouck knew of the purposes for which they were designed and had been used. The deed conveyed the premises, together “ with the appurtenancesand although no water privilege is particularly mentioned, yet I think, in view of the surrounding facts and circumstances, the conveyance must be construed to include all such privileges in regard to the water as naturally and necessarily were connected with the premises. Brown also owned the old mill, lower down the stream, for the purpose of supplying which in part the reservoir had been constructed and was used until he abandoned it; and although Brown knew, at the time of making the contract, that the reservoir was used for the old mill and the water privileges were to cease and revert to Hasbrouck if not used, in my opinion that fact does not deprive the plaintiffs of the rights and privileges which the deed may fairly be construed to convey; nor of the inference to be drawn from it, that it conveyed everything which related to or in any way affected the value of the premises, I do not think that it can fairly be claimed that the water rights which arose from the reservoir itself, which might be otherwise available for the purposes of the new mill, were confined alone to the old mill, and that the abandonment or discontinuance of the latter would cut off and prevent the use of the water which flowed from this source for the benefit of the stream. This clearly was one of the benefits existing at the time which followed the conveyance of the property and passed with the title of the land itself. The principle is well settled, that in such cases a deed from the owner conveys all the benefits which belong to the property as between that which is conveyed and property which is retained. The doctrine is fully discussed in Lampman v. Milks (21 N. Y., 505), and it is said in the learned and able opinion of Sblden", J.: “ That where the owner of tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser *352takes the tenement or portion sold with all the benefits and burdens which appear at the time of sale to belong to it as between it and the property which the vendor retains.” At the time when the deed of the premises in question was executed the reservoir was in existence, and the water from it had been taken from the culvert, which had been erected by Hasbrouck, and used by the plaintiffs for their mill; and it must be considered, I think, as a one of the benefits which belonged to, and which was to be derived from tho sale, as between the property sold and that which remained.

The learned judge, in the same ease, also says : “ The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.” The fact that the reservoir, and the water arising from it, had been used for the benefit of the plaintiff’s mill, are presumed to have been taken into consideration at the time of the sale, and if these are to be disregarded and overlooked, it is apparent that the value of the property would be seriously affected, and the vendee deprived of one of the most important and essential elements of value to real estate of this character. The reservoir was in existence at 'the time the . contract of sale was entered into between the parties, and the mill site would be of no account withoiit the water privilege attached to it. The case cited, covers entirely the principle involved in the one at bar, and I think, is decisive. It is enough, I think, that the water privilege was the principal element which constituted the value of the property, and that the mill-was built, and the water used, when tho conveyance was made by Hasbrouck to Smith. This conveyance was a sale of all the privileges and benefits existing at the time, which were known to the grantor.

I think that there is no force in the position, that the assignee of the contract was the equitable owner, and that Hasbrouck only had a lien for the unpaid portion of the purchase money'. The title did not become perfect until tho *353conveyance, and had it been intended to convey the premises with reservations, they should have been specified. Evidently, the grantor had knowledge of the large expenditure made for improvements, and of the rights which had been enjoyed from the reservoir unrestricted; and he is not in a position to assert, that his deed did not convey all that would naturally belong to the premises.

It is urged, that the trustees of the village of Rondout were acting in pursuance of a special statutory power, to construct or repair the sewer, and also in discharge of an absolute duty, as commissioners of highways of the village, and that Cloonan is protected under such power and duty. Cloonan in his answer, alleges title, and claims under that title, lie sets up a right to fill up the pond, so far as the same covers his land, and to appropriate the land to his own use. He stated Ms intention to one of the plaintiffs, to build a sewer to carry off the water from the pond, and to fill it up for lots, thus stopping the use of the mill, and greatly impairing its value. These declarations evince, that he did not claim to defend himself, under the authority of the trustees of the village, and are binding upon him.

As to the trustees, it does not appear that a separate motion was made on their behalf for a nonsuit, nor any claim to disconnect themselves from the acts of Cloonan. Hor was there any evidence to establish that a sewer was required for the use of the village or that any legal steps had been taken for the construction of it, nor that the act done was authorized as commissioners of highways.

I have examined the objections made to the admission of evidence, and I think that none of them are well taken. They do not require discussion.

There was no error upon the trial before the referee, and the judgment must be affirmed with costs.

Judgment affirmed.