
    Knowlton Brothers, Respondent, v. New York Air Brake Company and Others, Appellants, Impleaded with the City of Watertown and Others, Respondents. Knowlton Brothers, Respondent, v. New York Air Brake Company, Appellant.
    Fourth Department,
    October 13, 1915.
    See head note in Knowlton Brothers v. New York Air Brake Co. (ante, p. 324).
    Motion by the plaintiff for a reargument of the appeal in each case.
    
      Smith & Phelps [Pardon C. Williams and Louis L. Waters of counsel], for the motion.
    
      Lion B. Brown, for the defendant New York Air Brake Company.
    
      Arthur C. Rounds, for Watertown Light and Power Company, opposed.
   Per Curiam:

The plaintiff on this motion for reargument contends that our decision of the questions discussed in the opinion of the court (169 App. Div. 324) does not necessarily require a reversal of the judgment. While it is true that we might have undertaken to make a final judgment in the case, it did not seem proper to do so.

The conclusions reached by the learned referee to the effect that the owners on the south channel had acquired by prescription and the covenant against hydraulic works on the east end of the island the right to divert into the south channel all the waters of the north channel, except the limited quantity passing through the opening in the north shore dam, led necessarily to the judgment he rendered enjoining any hydraulic development on the east end of the island.

As we were unable to concur in these conclusions and as.they form so important a part of the foundation for the judgment, it has- seemed best that a new trial should be had where, unless the above-mentioned conclusions are supported by additional evidence, the other questions may be considered independent of and uninfluenced by them.

It is said that we are in error in speaking of Beebee as a tenant in common with others in the north channel dam.

It was our opinion that Beebee did not acquire title to the north shore of the river and the north half of the bed of the north channel until some time after he received the deed to the east end of the island in which was reserved the right to maintain the dam across the north channel, and that the title he acquired to the north half of the north channel on which part of this dam stood and the north bank against which it abutted was not affected by any reservation or covenant in the deed to him of the east end of the island and the south half of the north channel. His title on the north shore and in the north half of the river channel was the same as that of his grantor, who had granted no right to maintain the dam in the north half of the north channel on his land. Beebee, therefore, had a perfect right to destroy that part of the dam which was in the north half of the north channel after he became its owner without thereby committing a breach of his agreement in the deed to him of the east end of the island. Instead of destroying it he saw fit to make use of it to run his cotton mill by using the water which this dam assisted to impound and turn.into his flume. This, we think, placed him in much the same position as if he had himself constructed that part of the dam which was on his own land in the north half of the north channel unincumbered by any covenant or agreement on his part, or had joined-with others'in constructing the whole dam across the north channel. From the time he so commenced to use the dam it was not maintained by others adversely to him.

It is further urged that our disapproval of the whole of certain findings of fact will lead to embarrassment on the- new trial, inasmuch as certain separable parts of these findings are undisputed or well supported by evidence.

Our disapproval of a finding indicates, only that we did noil think the whole finding as made should stand. It is not necessarily a disapproval of each separate statement of the finding. Our reasons for disapproval appear in the opinion of the court, and our disapproval should be construed in the light of the reasons therefor expressed in the opinion.

Whether our reversal of the judgment has the effect to revive or continue the temporary injunction pending the new trial is a question which we think should not be determined upon this motion. Plaintiff having, since our decision, procured another temporary injunction enjoining the defendant New York Air Brake Company.from disturbing the present •dams pending the new trial, we are not disposed to attempt by amendment of bur decision to expressly order a revival or continuance of the original temporary injunction. Our power to do so is doubtful. If it exists there is no present necessity for its exercise.

Undoubtedly the air brake company should not be permitted to make its proposed hydraulic development until the extent and limits of its right are settled by final judgment in these actions. This the new injunction will accomplish.

Our views upon the other questions urged upon this motion appear sufficiently in the opinion which accompanied our decision.

The motion is denied, with ten dollars costs.

All concurred.

Motion for reargument in each case denied, with ten dollars costs!'  