
    American Ice Company, Respondent, v. Catskill Cement Company, Appellant.
    
      lee cutting on the Hudson river — right of one who has staked out a field to an injunction to prevent a manufacturer on the shore from allowing coal dust, etc., to Mow upon the ice—right of the Legislature to qualify the rights given by chapter 953 of the Laws of 1895, as amended by chapter 354 of the Laws of 1899, and by chapter 749 of the Laws of 1904.
    An owner of land abutting upon the Hudson river brought an action to enjoin the operation, during the winter season, of a cement manufactory located upon the shore of that river, on the ground that coal dust, cinders and dirt were carried by the wind from the cement plant upon the ice, thereby rendering it unmerchantable. The plaintiff’s rights were claimed to exist under chapter 953 of the Laws of 1895, as amended by chapter 264 of the Laws of 1899. After the plaintiff had obtained an injunction pendente lite in the action, chapter 749 of the Laws of 1904 was passed, which amended the act of 1895 by adding thereto the following provision: “ Nothing contained in this act, however, shall be construed as in any manner affecting, impairing or interfering with the right of any owner, lessee or occupant of lands bordering upon or adjacent, to the Hudson river or Catskill creek to the unrestricted use of the premises owned, leased or occupied by him for any lawful purpose.”
    Upon an appeal from the order granting the injunction pendente lite, it was Held,, that, assuming that the act of 1895, as amended by the act of 1899, entitled the plaintiff to the injunction sought, such right was defeated by the amendment of 1904;
    That the action being one in equity and the act of 1904 being a public one, it was the right and duty of the Appellate Division to take cognizance of the amendment of 1904 and to reverse the order granting the injunction pendente lite; That no property right was given so irrevocably by the act of 1895, as amended by the act of 1899, that it could not thereafter be qualified by a subsequent enactment permitting the unrestricted use of other property upon the banks of the Hudson river for a lawful purpose.
    Appeal by the defendant, the Catskill Cement Company, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 29th day of February, 1904, continuing pendente lite an injunction theretofore granted in the action.
    
      Frank H. Osborn, for the appellant.
    
      G. D. B. Hasbrouck, for the respondent.
   Smith, J.:

The plaintiff is the owner of six icehouses, together with the land upon which they stand, upon the banks of the Hudson river. The defendant is the owner of a cement manufactory, also upon the shore of the Hudson river. The object of the action is to enjoin the operation of the defendant’s cement manufactory, during the freezing season until the plaintiff’s icehouses have been filled. This injunction is asked upon the ground that in the operation of the defendant’s plant coal dust, cinders and dirt are carried from the plant by the wind upon the ice, thereby rendering it unmerchantable. A temporary injunction was granted ex pa/rte, and upon motion it was continued during the pendency of the action. From the order thus continuing the injunction this appeal has been taken.

The plaintiff’s rights are claimed under chapter 953 of the Laws of 1895, as amended by chapter 264 of the Laws of 1899. The Hudson river is a navigable river subject to rise and fall with the tides to a point beyond the location in question. Primarily, the right to the ice is in the State. By these acts the owners of land adjoining the river upon which were icehouses, and the lessees of such land, might stake out ice fields after the formation of the ice to the center of the river opposite the land which was owned or leased. The ice thus staked out was declared to be and became the personal property of the owners or lessees of said land, and any person trespassing thereupon or taking the same was made liable to such owners or lessees for the value of the ice so taken. It was also by the act provided that a temporary injunction might issue restraining parties from trespassing upon or taking said ice pending the determination of an action to be brought therefor. Under this statute the temporary injunction in the case at bar was issued and continued.

Since the granting of the order here challenged, however, chapter 749 of the Laws of 1904 was passed, which was an amendment of the act of 1895 aforesaid, and to the 2d section was added this provision: “Nothing contained in this act, however, shall be construed as in any manner affecting, impairing or interfering with the right of any owner, lessee or occupant of lands bordering upon or adjacent to the Hudson river or Catskill creek to the unrestricted use of the premises owned, leased or occupied by him for any lawful purpose.”

Assume for the argument that the act of 1895, as amended by the act of 1899, gave to the plaintiff such rights of property in the ice as would authorize the granting of an injunction against the defendant. The apparent purpose of the amendment of 1904 was to protect the defendant and others who were using the banks of the river for purposes which in their lawful execution would necessarily throw dirt and cinders upon the ice in the river. The right to judgment in an equity action must depend upon the facts existing at the time of the rendition of that judgment. Under the act, as amended in 1904, the plaintiff would not be entitled to the injunction asked. Without the right to a permanent injunction, the right to a temporary injunction no longer exists.

This court must take cognizance of this amendment of the law in determining this appeal. Section 626 of the Code of Civil Procedure authorizes an ex parte application to the Appellate Division to dissolve an injunction. The law is a public one, of which the court will take judicial notice.

It was suggested upon the argument that under the act of 1895, as amended by the act of 1899, property rights in the ice in question were given to the plaintiff which could not thereafter be qualified by the Legislature. This suggestion is not discussed upon the respondent’s brief. We are of opinion, however, that no property right was by the acts in question so irrevocably given that it could not thereafter be qualified by permitting the unrestricted use of other property upon the banks of the Hudson river for a lawful purpose. It is not necessary for us here to decide, nor do we pass upon the question, as to whether the plaintiff would be entitled to the injunction had not the act of 1895 been amended by the act of 1904. As the order is reversed by reason of matters arising since the granting thereof the reversal should be without costs.

All concurred; Houghton, J., not sitting.

Order reversed, without costs, and motion denied.  