
    James Outwater, Resp’t, v. Jeremiah Moore, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    Judgment—Where plaintiff succeeds upon one issue and defendant UPON ANOTHER.
    Plaintiff brought this action to compel defendant to remove a fence which he claimed was not erected upon the line, but on plaintiff’s land; also to compel defendant to lower a certain dam which he had wrongfully raised two feet, thereby flooding plaintiff’s land. The court found in defendant’s favor on the first issue and in plaintiff’s on the second, but the judgment entered contained no adjudication as to the fence, and the court refused, on motion of defendant, to compel plaintiff to insert findings in the former’s favor in regard to it. Held, error; that it was the duty of the court to direct such a judgment in defendant’s favor as the established fac s required, so that there might be authentic, permanent and indisputable evidence of record as to. his rights.
    Appeal from a j udgment of the general term of the supreme court in the second judicial department, modifying and affirming as modified a judgment entered upon the decision of the court at special term and also modifying and affirming as modified an order denying a motion to conform the judgment to the findings and for other relief.
    The plaintiff alleged, in his complaint that on the seventh day of June, 1883, he owned certain premises in the-town of Eed Hook, Dutchess county, and that the defendant on or about tha$ day entered thereupon, took down the fence that stood thereon and removed the same; that he also “ then and there erected another fence, and said new fence was not erected upon the true division line between the land of plaintiff and defendant nor upon the line of the old fence, but upon the land of the plaintiff, without any right or authority in the defendant so to do, and dug holes, trod down grass and otherwise injured plaintiff’s premises to his great damage (amounting to) twenty-five dollars.”
    As a second cause of action the plaintiff alleged that in 1882 the defendant erected a dam across a creek that flowed through said premises upon the site of an old dam “ and where he had a right to erect it to a certain height,” but that he “ wrongfully raised the same two feet higher than the old dam or than he had a right to raise or build the same,” and thereby caused the water to overflow and injure the said lands. The prayer for relief was that the defendant be compelled to lower his dam to its proper level, return the fence to its proper line and pay the plaintiff the sum of $125 as damages. The answer was a general denial.
    The action was tried before the court without a jury, and the justice presiding found the facts in favor of the defendant upon the first issue and in favor of the plaintiff upon the second, and as a conclusion of law, “that the dam erected across said creek or stream be lowered fourteen inches throughout its whole length by defendant on or before May 15, 1884, and that plaintiff recover from the defendant the sum of six cents damages and his costs and disbursements in this action.” The judgment subsequently entered recited none of the facts found, except such as were favorable to the plaintiff, and it contained no adjudication upon the issue relating to the division fence. Thereupon, the defendant, upon due notice, moved at special term for relief in various forms and, among other things, “ for an order that the judgment herein be made to follow and conform to the findings herein as to the line fence between the parties,” but the motion was denied, with ten dollars costs. Upon appeal to the general term, both from the judgment and from the order denying said motion, the former was so modified as to require the defendant to lower his dam ten inches instead of fourteen, and so as to provide that the plaintiff should recover neither costs nor disbursements of the action. The order was also modified by striking out the award of costs¡ and both the judgment and order, as thus modified, were affirmed without costs to either party.
    
      Homer A. Nelson, for app’lt; Daniel W. Guernsey, for resp’t.
    
      
       See 14 N. Y. State Rep., 935.
    
   Vann, J.

The learned trial justice found as a fact “ that the fence mentioned in plaintiff’s complaint and alleged to have been built by defendant on plaintiff’s land is not upon plaintiff’s land, but upon the line between plaintiff and defendant, and marks the same,” but he refused to find, upon the request of the defendant, as a conclusion of law, “ that the defendant is entitled to judgment herein declaring that the fence mentioned in the complaint is not upon the land, of plaintiff, but is upon the line between plaintiff and defendant’s lands.” The defendant excepted to this ruling and now insists that he has been denied a substantial right by the refusal of the court to find the conclusion of law required by the facts as established, and to adjudge that the fence in question is upon the true line of division between the lands of the parties.

The issue relating to the location of the fence was tendered by the plaintiff, accepted by the defendant and thoroughly tried by both parties, without question as to form or remedy. It was a material issue upon which the first cause of action set forth in the complaint mainly depended. When the trial court found the facts in favor of the defendant, he was entitled to the fruit of"'the finding by having the law properly applied and such an adjudication made as would, by matter of record, estoj) the plaintiff from reopening the controversy. It, therefore, became the duty of the court, upon the request of the defendant seasonably made, to direct such a judgment in his favor as the established facts required, so that there might be authentic, permanent and indisputable evidence of record as to his rights. As the complaint could not be dismissed upon the merits, because the plaintiff succeeded on the second cause of action, the defendant could have adequate protection only by an express direction for judgment in his favor to the extent that the facts were found in his favor. This the learned trial judge, doubtless through inadvertence, refused. to do, although a request inpropér form was presented to him at the proper time. Fortunately this error is corrigible upon appeal without ordering a new trial, as it is the duty of the appellate court to declare the law and apply it to the facts, already found; and thus protect the parties from the evil of further litigation.

The judgment, therefore, should be so modified as to adjudge that the fence mentioned in the complaint is not upon the lands of the plaintiff but is upon the line between the lands of the plaintiff and defendant, and as thus modified affirmed, but, as the defendant’s appeal was general and there is no other question requiring consideration, without costs in this court to either party.

All concur.  