
    Henrietta Church, Ex’rx, App’lt, v. Daniel D. Barkman, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Injunction—Damages—Deed—Oral reservation of personal property UPON PREMISES.
    One Becker conveyed certain mill property to one Engle,but orally reserved the personal property in and about said mill and everything he used insaid mill. Said property was of a greater value than $50. Soou after this, one Church, claiming title to said mill property, began an action against said Becker to restrain him from carrying away any of the structures, appurtenances or fixtures thereon. In tins action Becker succeeded. A referee was appointed to assess his damages resulting from an injunction obtained in said action. Held, that although the oral reservation might not as between Engle and Becker have conveyed the legal title to the personal property, Church could not set this up; that said agreement gave to Becker fit least the beneficial enjoyment of said property, which enjoyment had been interfered with by said injunction, and that for this Becker was entitled to damages.
    2. Fixtures—Depreciation during an injunction. '
    The referee allowed damages to a bulkhead and tube to convey water from said bulkhead to said mill, and for the depreciation of the machinery of the mill during the injunction, and he found all these things to be personal property. Held, correct.
    Appeal from an order of the Albany special term, confirming report of referee assessing the damages sustained upon an injunction.
    
      M T. Hun, for app’lt; W. G. Yeomans, for resp’t.
   Landon, J.

The injunction order restrained the original defendant Becker from committing any waste upon the premises, .and from carrying away therefrom any of the building structures, appurtenances or fixtures. The order after being in force for three years was dissolved by the final judgment of the ■court

The original plaintiff, Walter S. Church, claimed to own the premises and alleged in his complaint that the original defendant, Becker, occupied them as his tenant. When this action was commenced and the injunction served, Becker was engaged in removing the machinery, fixtures and appurtenances from a grist mill rand water power upon the premises, and placing them in a new mill and water power lower down upon the same stream upon ■other premises owned by him. By his answer he denied Church’s •title, and alleged title in himself. The referee allowed damages for the value of the bulkhead, and of the trunk or tube for conveying water from the bulkhead to the mill. The referee found they were rendered useless in consequence of the injunction; he also allowed for the depreciation in value of the machinery and .appliances in the mill, upon finding that they were injured in consequence of the injunction. He also found that all these things were personal property.

It appeared upon the hearing before the refereee that Becker ■shortly before the commencement of this action conveyed the "mill premises in question to his grand daughter Emily Engle, but reserved “the personal property in and about said mill and everything he usually used in the mill.”

At the time of his conveyance to Emily Engle it was orally agreed between them that he could take from the old mill and place in the new one whatever fixtures and machinery he wished, ■and this oral agreement was never revoked. The evidence warrants "the conclusion that but for the injunction order Becker would have removed with the full consent of Emily Engle, from the old mill to the new, all the property for which the referee has awarded damages. The plaintiff insists that such property was real estate, and that Becker because of his conveyance to Emily Engle had no title to any of it.

It is not improbable that the bulkhead and tube therefrom to the mill were fixtures or appurtenances. But grant that Becker had no legal title that would have been adjudged valid as against Emily Engle if she had chosen to assert her own title, yet as she did not choose to assert it, but on the contrary chose to allow him to take whatever he wanted, he had practically sufficient title to permit him to have the same beneficial use of the fixtures and appurtenances as if he had had a legal title to' them, and this beneficial use Church unjustifiably interfered with and thus destroyed. The question is, how much did Church’s unjustifiable interference injure Becker? And the answer must be, just the loss he actually sustained in being deprived of his privilege of removing the property. This is not to be measured upon the basis of an estimate of Becker’s title, if challenged by Emily Engle, but by an estimate of the value to him of her free consent to remove the property and make it. his own. Church stood upon his own alleged title and not upon Emily Engle’s, and it cannot help him that if she had obtained the injunction she might have maintained it.

Respecting the amount of ^he award, it is limited by the amount of the undertaking to $500 and is $337 less than the referee finds the damages actually sustained. We think the actual award is within the evidence.

Order affirmed, with ten dollars costs and disbursements.

Learned, P. J., and Mayham, J., concur.  