
    John C. Harris, Appellant, v. Warren Curtis and Others, Respondents.
    Third Department,
    June 29, 1910.
    Beal property — partition — easement in water power — when not lost by non-user — conveyance of dominant estate — evidence — immaterial error —modifying judgment.
    The right to a water power and to control water for that purpose can be conveyed or reserved in the form of an easement, and, if so conveyed or reserved, is a charge upon the servient estate, and follows such estate into whosesoever hands it may be conveyed.
    Where it appears that a mill site was conveyed subject to such an easement in favor of the surrounding farm by one who claimed title thereto, and that the grantees of the mill site acquiesced in and ratified the grantor’s right to make, the reservation, the title of those claiming under them is subject to the servitude.
    The land is not relieved of the easement because . the purchasers at a foreclosure sale of the property permitted the mill site to be sold for taxes by the State Comptroller.
    Where an easement is held by a grant or reservation, a conveyance of the dominant estate to which it is attached transfers the easement, although it be not expressly mentioned in the deed. Such an easement is not lost by non-user.
    Where in an action to partition a farm, the principal issue is the site of the original mill, it is not error to refuse to admit in evidence the case on appeal in another cause involving the same land wherein no issue was raised as to the mill lot.
    
      Although certain of the evidence 'in the record was competent, its exclusion, is immaterial if there was no dispute as to the point to which it related.
    Where the lower court wrongly concluded that the easement had been extinguished, but otherwise found correctly, and the fact of the easement is a matter of record and not disputed, the judgment will be modified in that respect, and as modified affirmed.
    Appeal by tlie plaintiff, John C. Harris,, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of tlie county of Warren on the lltli day of August, 1909, upon the.decision of tlie court, rendered after a trial before the court without a jury at an'adjourned term of the Warren Trial Term, determining the rights and interests of the parties in certain property, and directing a partition thereof.
    
      Nash Rockwood, for the appellant.
    
      James McPhillips and John H. Barker, for the respondents.
   Per Curiam :

The action is brought to partition a farm situated • on the east bank of the Hudson river, in-the county of Warren, designated as the Ferry farm. The rights of the parties in the farm itself' were stipulated on the trial. At an parly day the owners of the farm had conveyed to a third party two separate parcels containing three or four acres of shore land, together with water rights, upon which was installed a sawmill, which came to be known as the Mott mill, and which was carried away by a flood in 1858. The water power remained idle from that.time until about 1905, when one of the defendants erected -a dam and electric power plant, as he claims, upon the old site. The plaintiff asserts that the old mill was further up the stream, and' its exact location was the point in controversy on the trial, and was important because the lower line of the farm extends only a short distance below the mill site, and not a sufficient distance for the development of another water power if the present electric light plant is located where the old mill stood.

From a careful review, of the evidence we are satisfied that the learned trial court correctly found that the present structure is substantially on the site of the Mott mill.

We think he was in error, however, in his conclusion that the easement appurtenant to the Ferry farm to take water through a circular tube thirty inches in diameter from the Mott mill pond was destroyed by the tax sale of the mill property, or that such property was relieved from such servitude through conveyance to the defendants by the Comptroller of- the State,

One Charles Carpenter owned the Ferry farm in 1850. He also . held title to the Mott mill property. The south line of the farm extended only about a hundred feet down the river beyond the south line of the mill property. On the 24th of August, 1850, he conveyed the mill property to one Hogle, and made the following reservation : “ Saving and reserving t'o the said Charles Carpenter, his heirs and assigns forever the right and privilege of taking out water .from the mill pond of said mill on the premises hereby conveyed in a square or circular trunk not exceeding in size a circular tube of thirty inches in diameter on the inner side and to be laid along the east side of said sawmill’s flume on a level with the head gates of said sawmill at the point where it passes said head gates; which water may be used for the purpose of driving any machinery excepting a sawmill and to be used only upon this express condition, that the said Charles Carpenter, his heirs or assigns, shall before such use pay to the said Barney P. Hogle, his legal representatives or assigns, the sum of fifty dollars, and thereafter be at one-half the expense of keeping erected and in repair the dam and such fixtures in the said river as shall be necessary to secure a full supply of water for such sawmill and other machinery as may be driven by the water from the pond created by said dam.” This deed was recorded September 23, 1850, and, Was accompanied by another deed not recorded from himself and one Aldrich also to Hogle, in which the reservation is mentioned and the language quoted. It does not clearly appear how Carpenter acquired title to the mill- property, except that he and Aldrich were assignees for the benefit of creditors by assignment from Hogle and that Hogle brought ail action compelling them to reconvey to him, and both deeds recite that the conveyance was made in pursuance of a decree of the court. From the recitals in the deed it must be assumed that Carpenter had the right .to make the reservation for the benefit of the Ferry farm, which contained land on the river below upon which a structure might be erected, but which was insufficient for the development of a water power. Especially is this so, because in the year following Hogle conveyed an undivided half interest in the mill lot to Albert T. Harris, in which he expressly excepted the reservation which Carpenter had made and referred to the .deed which he had received from him in which it was contained, and subsequently gave a mortgage on his remaining half, as did the grantee of Harris, in both of which the exception of the reservation was specified. Whatever Carpenter’s title may have been, and however he may have had the-right to make the reservation, it was acquiesced in and ratified by Ilogle and his grantees, and the purchasers under the mortgages, which were subsequently foreclosed, took tlie property subject to the servitude of the easement. . So-far as the mill lot was concerned, therefore, the easement of the right to take water as specified- was impressed upon it as a servient estate, and neither Hogle nor the subsequent purchasers under foreclosure who permitted the property to be sold for' taxes had any title except with the servitude attached.

The taxes assessed were only on the interest of th,e owners in the land. The easement with which it was burdened was not a lien which the taxes took priority over. ■ The right to a water power and to draw water for that purpose is a right respecting land and can be conveyed or reserved in the form of an easement. (2 Pingrey Heal Prop. § 1403.) Easements are a charge upon the estate of the owner of the servient tenement and follow such, estate into the hands of those to whom the servient tenement is conveyed. (Hills v. Miller, 3 Paige, 254.) The fact that the purchasers at the foreclosure sale permitted the land to be sold for non-payment of taxes did not relieve the land of the easement or destroy the servitude which the original grantor had placed, upon it.

But the defendants insist that even though the tax sale did not destroy the easement neither Carpenter nor his heirs ever parted with it, and that it did not pass with the conveyance of the Ferry farm because it was not mentioned in the deed. Carpenter' died owning the farm and his heirs conveyed it to Harold J. and William C. Buttolph, taking back a purchase-money mortgage through the foreclosure of which title came to the present owners. This deed did not specifically -mention the easement to take water from the mill pond. The record contains only an abstract of the deed, but the appellant’s brief states, and we assume correctly, that it conveyed the farm with the appurtenances and all the estate, title and

interest therein of the said party of the first part,” and that the •mortgage contained' the same words. It was not necessary to specify the easement in the deed of the farm. Carpenter owned both parcels, the farm and the mill lot, and when he conveyed the mill lot to Hogle and reserved the right for the benefit of the farm such easement passed with a conveyance of the farm, because it was a part of the real property conveyed. The easement was not one of necessity nor one of appurtenance in use at the time of the conveyance, but was an easement by reservation which amounted to a grant. Where an easement is held by grant a conveyance of the dominant estate to which it is attached transfers the easement without any express words. (2 Washb. Real Prop. [6th ed.] § 1234; Barnes v. Lloyd,. 112 Mass. 224; Jones v. Adams, 162 id. 224; Wolfe v. Frost, 4 Sandf. Ch. 73; Provost v. Calder, 2 Wend. 517.) The easement having been acquired by grant, and being a freehold interest was not lost by nonuser. (Pope v. O'Hara, 48 N. Y. 446; Welsh v. Taylor, 134 id. 450.) The language of the opinion in Boot v. Wadhams (107 NH. Y. 384), upon which the defendants rely, was employed with reference to appurtenances in use or of necessity as distinguished from easements obtained by grant.

There was no error in the refusal to admit in evidence the case on appeal in Jones and Carpenter v. Buttolph. That action was merely a foreclosure of a mortgage on the Ferry farm. There was no issue raised respecting the mill lot. " The evidence of the engineer as to the fall of the river and head which could be obtained was not respecting any issue raised, but simply to show the- situation and value of the farm, and as to the present defendants was hearsay. To be sure, Mott, the then owner of the mill site, testified to the servitude of drawing water from his pond, but if what, he said was' a ' declaration against interest and, therefore, competent evidence the error in excluding it was immaterial, for there was no dispute on the present trial of the original creation of the easement.

Mor is it material so far as the plaintiff is concerned whether the People of the State own the bed of the Hudson river at the point in question. If title is in the People it is not in him and the bed does not belong to the farm. If the defendants have unlawfully built a mill and dam opposite his shore land it is only by another action and in another form that its removal can be compelled.

The reservation of the easement was' matter of record which cannot be changed on a retrial and there was no dispute concerning it. The court found that it once existed but wrongly concluded that it had- been extinguished. It is not hecesshry, therefore, for us to send this branch of the case back for a retrial, for we have the power to order a modification of the judgment. The interlocutory judgment appealed from should be modified by inserting a provision therein that there is attached to the farm an easement of the right to take water from the mill pond at the Mott mill site equivalent to or through a circular tube not exceeding thirty inches in diameter on the inner side, on complying with the conditions of the reservation contained in the deed from Carpenter to Hogle, and as so modified affirmed, without costs .of appeal to either party.'

Interlocutory judgment modified as per opinion, and as so modified unanimously affirmed) without, costs to either party.  