Argued June 18, 1888
Decided October 26, 1888
James A. Lynes for appellant. F.L. Smith for respondent.
The parol agreement between Caryl and Daniel Crippen, made in 1837, for the use of water from the spring belonging to Crippen, although founded upon a consideration, was nothing more than a license. We cannot see any material distinction between this case in that respect and those of Wiseman v. Lucksinger ( 84 N.Y. 31), and Cronkhite v. Cronkhite (94 id. 323). In the former case the parol agreement was quite as specific in its terms as the one here proved, and yet it was held not sufficiently complete and definite to be regarded in equity as equivalent to a grant by deed or conveyance, in writing, as required by the common law and by our statute. The grant, by deed, of Daniel Crippen to La Moure, of the privilege to bring water from the spring sufficient to fill a three-fourths inch pipe, although not, in terms, a revocation of the license to Caryl to take water from the same spring sufficient for all domestic purposes, yet taken in connection with the fact found by the referee that a three-fourths inch pipe would draw all the water there was from the spring, the grant, above mentioned, can be regarded in no other light than as a revocation of such license to Caryl. Notwithstanding this revocation the fact is that Caryl asserted and claimed the right to and did take water continuously from such spring sufficient in amount for his domestic purposes, and he and his grantees have actually continued this use and under this claim of right for over forty years, and down to the year 1880, when the trouble culminating in this lawsuit commenced. This use has been submitted to and acquiesced in by La Moure and his grantees for that length of time. After the revocation of the license to Caryl by Crippen became known to Caryl, his further use of the water, open, notorious and under a claim of right, as well against Crippen as all others, would inaugurate an adverse user as against the world. As there was only water enough to fill one pipe of three-quarter inch size, every drop taken by Caryl under his claim of right was a direct adverse user of that quantity of water belonging to La Moure under his conveyance above mentioned.
It is true that La Moure and Caryl used the same pipe in conducting the water from the spring, and that Caryl tapped it at a proper place on his own land in which to insert a branch and lead the water to his house. Whether the use was by means of the same or a different pipe is of no importance. It was under a claim of right, and it is the use and not the means by which the use was obtained that is material, and the finding of the referee is, that it was notorious, visible and under a claim of right, adverse and continuous as against defendant and all his grantors for forty years. The pipe to conduct the water was procured and furnished by Caryl, and its use by Caryl was some years prior in point of time to the conveyance by Crippen to La Moure, and the pipe which brought the water down to a point on the lands of Caryl, where it could then be conducted by a branch, was simply lengthened so as to enable La Moure to get the water to his house, and the use thus inaugurated by Caryl was kept up by him and his grantees, as has been said, for more than forty years under this claim of right, and of a nature adverse to La Moure and his grantees. There was no explanation found by the referee on the part of La Moure showing, or tending to show, that this user by Caryl was by virtue of any license from him (La Moure), and the acquiescence in such use by him and his grantees for forty years shows a recognition on their part of the right of Caryl as exercised and claimed by him.
This user was injurious to the property of La Moure in the water from the spring, because the size of the pipe which he was authorized to use in order to conduct the water would take all the water from the spring, and hence every particle thereof taken under a claim of right adverse to La Moure by any one else was an invasion to that extent of the rights of La Moure. Such a continued use of the water for more than twenty years, unexplained, gives a right to its continuance. ( Hammond v. Zehner, 21 N.Y. 118.) No such explanation is found to exist.
This adverse user, so long acquiesced in by those against whom it was claimed, and whose property in the water was thus and thereby injuriously affected, makes out a complete defense to the claim of La Moure and his grantees as now made to the sole and exclusive property in the whole water under the deed to La Moure. And this conclusion seems to us to be more consistent with the justice of the case than if, after so long an acquiescence in this adverse user, the right to take all the water should be found to still remain in La Moure or his grantees to the entire exclusion of the grantees of Caryl.
Upon the findings of the referee the plaintiff has made out his cause of action, and the further question arises whether there is any evidence which supports the finding as to the use of the water by Caryl and his grantees under the claim of right and adverse to all the world.
On looking through the record it is apparent that there is evidence of that nature and quite enough to support such finding, and that is conclusive upon us on this appeal.
The learned counsel for the respondent, in order to still maintain the correctness of the reversal of the judgment by the General Term, even if it were wrong on the main question, has called our attention to two or three alleged errors in the admission of evidence by the referee, which, as is claimed, called, in any event, for such reversal.
We have carefully looked through all the evidence and are of the opinion that even if the errors be conceded they could not have affected the result at which the referee arrived. The defendant criticises the judgment as entered, because he says it deprives him of all right to control the water in any way so as to reserve to him what is undoubtedly his, viz., all the water excepting such an amount as is sufficient for plaintiff for domestic purposes. But we think the criticism not well founded. He would have the same right which he has hitherto exercised of so regulating the flow of the water to the plaintiff that he should get no more than he has been accustomed to have, and which was sufficient for his domestic purposes, and all the balance belongs to defendant and must go to him, and he would have and has the right to see to it that he does so get it.
The order of the General Term granting a new trial must, therefore, be reversed and the judgment entered upon the report of the referee affirmed, with costs to the plaintiff.
All concur, except ANDREWS, J., dissenting.