
    CATHARINE VAN RENSSELAER and CORNELIA BOLTON, Executrices of CATHARINE W. VAN RENSSELAER, Deceased, Respondents, v. HORATIO D. MOULD, Appellant.
    
      Action to recover damages for entering upon land undw' water and cutting and removing ice thereon — the recovery must be such as to compensate the owner for an injury to his real estate — evidence as to the man'lcet-value of the ice when cut and stored is inadmissible.
    
    In this action, commenced by Catharine Van Rensselaer, the testatrix, to recover damages from the defendant for wrongfully entering upon her land and cutting and removing therefrom a quantity of ice, the referee, before whom the action was tried, found that at the time the ice was cut and removed by the defendant, and at the time of the death of the said Catharine, she was seized and possessed of the land under the waters of the Hudson river, where the ice was cut, which lands were separated from the channel and navigable waters of the Hudson river by a dyke constructed by the State; that the plaintiff’s testatrix never cut and gathered for sale or sold any of the ice which formed in the Hudson river in front of or upon her premises, and did not inclose her premises or mark the boundaries thereof, either inside or outside the dyke, and the referee found that there was no market-value for said ice as it lay unharvested, but that the said ice was of some value as it so lay before being cut by the defendant.
    'The defendant, who was engaged in the business of cutting, storing and selling ice, and owned and operated ice-houses situated on premises six or seven hundred feet from the northerly line of the premises of the testatrix, without the permission, or consent of the testatrix, cut and removed and stored in his ice-house, and sold or used for his own purposes, ice cut from the surface of the water over the. premises of the said testatrix.
    Upon the trial the referee, against the objection and exception of the defendant, allowed witnesses to state the market-value of ice which had been cut and stored-for sale.
    
      Held, that he erred in admitting this testimony, for the reason that it furnished no-proper criterion by which to determine the value of the ice in question before it was harvested, as the evidence failed to show the expenses attending the harvesting of the ice, and the capital involved in the purchase of land, and the erection, thereon of suitable buildings and appurtenances for storing it.
    That, as the action was brought to recover damages against the defendant for a wrongful entry upon the lands of the testatrix and the cutting and removing of ice, the right of action depended upon whether the cutting and removing of the ice could be regarded as an injury to the real estate, and that the amount of the recovery must be such as to compensate.for such injury only.
    The questions as to whether ice, which is formed on a navigable stream like the-Hudson river, can be considered property in such a sense that the owner of the land under the water where the ice has been formed can appropriate the same' to his use to the exclusion of all others, and as to the rule by which the damage. sustained by the plaintiff’s testatrix was to be ascertained, were not decided.
    Appeal by tbe defendant from a judgment, entered in Rensselaer county upon tbe report of a referee, in favor of tbe plaintiffs against tbe defendant.
    
      Esek Oowen, for tbe appellant.
    
      B. W. Brass and W. F. Beutler, for tbe respondents.
   Ingalls, J.:

This action was commenced by Catharine Van Rensselaer, tbe testatrix, to recover damages of tbe defendant for wrongfully entering upon ber land and cutting and removing therefrom a quantity of ice. Tbe plaintiffs establishéd upon tbe trial that at tbe time the ice was cut and removed by tbe defendant, and at tbe time of' tbe death of Catharine Van Rensselaer, she was seized and possessed of tbe land under tbe waters of tbe Hudson river, wheretbe ice was cut by defendant. Tbe report of the referee contains tbe following findings of fact: “ Several years prior to tbe time of tbe first cutting of ice by defendant, hereinafter .mentioned, tbe State of New York bad constructed a dyke in said Hudson river, from a-point in tbe east bank thereof, at a considerable distance above the> said premises of plaintiff’s testatrix, and above the ice-houses of the defendant hereinafter mentioned, down the river in a southerly direction past the said ice-house, and crossing the said premises of the plaintiff’s testatrix, and extending to the southerly bound thereof, and separating about one-third of the said premises of plaintiff’s testatrix from the part of said premises and of the Hudson river lying westward of said dyke, and separating that portion of the Hudson river lying east of said dyke from the channel and navigable waters of said river; and that said dyke had been extended and continued below said premises and further south in said river by the United States; that the defendant was engaged in the business of cutting, storing and selling ice, and was the owner of and operated certain ice-houses situated on the east hank of said river, and six hundred or seven hundred feet northerly from the said premises of the plaintiff’s testatrix; that said dyke was constructed without openings therein to admit of passing from that portion of the river lying westward thereof to that portion of the river lying eastward thereof, and that the defendant, in December, 1880, made, or caused to be made, such an opening in said dyke at a point upon the said premises of plaintiff’s testatrix, and about two hundred and fifty feet below the northerly line thereof; that the plaintiff’s testatrix never cut and gathered for sale or sold any of the ice which formed in the Hudson river in front of or upon her said premises, and did not inclose her said premises or mark the boundaries thereof, either inside or outside the said dyke; that the defendant, without permission or consent of the plaintiff’s testatrix, cut and removed and stored in his ice-house and sold or used for his own purposes, ice from the surface of the water over the said premises of said testatrix, inside the said dyke, in December, 18ÍT9, February, 1880, December, 1880, February, 1881, December, 1881, February, 1882, December, 1884. and in the early part of the year 1885, and prior to April first therein, and at each of said times he cut over an area bounded north by her north line, west by a line fifteen feet from the east line of the dyke, east by a line fifteen feet from the shore, and south by a line running from the south side of the cut in the dyke to the shore, parallel with the north line, and that the ice so cut by him was from ten to twelve or more inches in thickness, and of fair to good merchantable quality; and the quantity of ice so cut by bim at each of said cuttings was about five hundred tons; that the defendant, without the permission of the plaintiff’s testatrix, cut and removed and stored in his ice-houses and sold or used for his own purposes ice from the surface of the water over the said premises of said testatrix outside of said dyke, in February, 1881, December, 1881, and February, 1882, and "at each of said times he so cut over an area about 400 feet in length and 200 feet in breadth, and the ice taken therefrom was taken by him through the cut made by him in said dyke and thence up inside of said dyke, to his ice-houses, and that the ice so cut by him was from eight to twelve inches in thickness and of fair to good merchantable quality, and the quantity of ice so cut by him at each of' said cuttings was about fifteen hundred tons. That at the times of such cuttings and gatherings of said ice by the defendant there was no marlcePvalue for said ice as it lay unharvested in the place where it was so cut by the defendant, but that the said ice was of some value as it so lay before being cut by the defendant.”

The referee made the following findings upon the request of the defendant: Second. That the point where the ice was taken by defendant was below where the tide ebbs and flows. Third. That the waters from which the ice was taken and sued for in the above action was a navigable river. Fourth. That said ice was taken from the Hudson river, on the east bank of which lies the land claimed to be owned by the plaintiff, Catharine W. Van Rensselaer. Fifth. That the plaintiff did not, during the years 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, mentioned in the complaint herein, and the time it is claimed defendant took the ice from the said river, stake out or put up safeguards, or enclose in any manner whatever the ice, or any portion thereof, in front of premises claimed by her upon the Hudson river, as required by chapter 388 of the Laws of 1879.

It apjiears by the facts found by the referee, and the evidence is to the effect that, previous to the cutting and removal by the defendant,' the ice remained precisely as it formed in the river. The plaintiff’s testatrix had not even marked it for cutting, or placed around it or upon it anything to indicate that she proposed to harvest the same. There was no severance, by which the ice took the form of personal property or which indicated an intention on the part of Mrs. Yan Rensselaer to make it such. If she bad' caused tbe ice to be cut into blocks it would have given it tbe appearance of personal property and amounted to a strong assertion that sbe regarded it as sucb in her possession. Considering tbe character of tbe stream, tbe situation of tbe ice before its removal by tbe defendant and tbe manner it bad been treated by Mrs. Yan Rensselaer, we conclude that if sbe possessed any property in tbe ice it could only be regarded an incident to tbe land, to which it bad become temporarily attached. Exactly what sucb interest was it is quite difficult, under tbe circumstances, to apprehend or define. (Huntington v. Asher, 96 N. Y., 604.) Whether ice, which is formed on a navigable stream like tbe Hudson river, can be considered property in sucb a sense that tbe owner of tbe land under tbe water where the ice has formed can appropriate tbe same to bis use, to tbe exclusion of all others, is a question which has been much discussed, and in regard to which tbe decisions of tbe courts' have not been uniform. Much may be said, with apparent reason, upon either side of tbe question. Tbe owner of land, through which a stream of water flows, may use tbe water to a limited extent, but not in manner or quantity, so as unreasonably to prejudice tbe rights of other riparian owners, nor so as to interfere with navigation if tbe stream is navigable.

In Kent’s Commentaries (vol. 3, p. 439), tbe author, commenting upon tbe subject, remarks in regard to tbe right of tbe owner of tbe land through which such stream of water flows, as follows: He has no property in the water itself, but a simple usufruct while it passes along. * * * Though be may use tbe water while it runs over bis land as an incident to tbe land, be cannot unreasonably detain it or give it another direction.”

How far this principle may be regarded as applicable to ice formed in sucb streams, which is only water frozen and destined to become liquid in a few months at furthest, may be regarded, as to some of tbe important features involved, a mooted question. Tbe view which we take of this case, upon this appeal, does not render it necessary to further consider the question to which we have referred. We are satisfied that tbe learned referee adopted a rule of damages not justified by tbe facts of tbe case. Tbe action is brought to recover damages against tbe defendant for a wrongful entry upon the lands of the testatrix and cutting and removing ice. The cutting and removing of such ice, if it created any right of action against the defendant, must, we think, depend upon whether it can be regarded an injury to the real estate of the owner, and, consequently, the amount of the recovery must be such as to compensate for such injury only.

It seems probable that the referee, in estimating the amount of the damages, regarded the ice as personal property rather than as an incident to the land. He allowed witnesses, under objection made by the defendant, to state the market-value of ice which had been cut and stored for sale. This we deem erroneous, as furnishing no proper criterion by which to determine the value of the ice in question before it was harvested. Several important elements, necessarily entered in, to make up the price of ice prepared for market, among them the expenses attending the harvesting, the capital involved in the purchase of land, and the erection thereon of suitable buildings and appurtenances for storing, and the profits. The evidence fails to inform us in regard to such items of expenditure, and, consequently, we have before us only the opinion of the witness as to the value of a marketable commodity, which had a market-value by which to fix the value of an article, which, confessedly, had no market-value. The referee, as we have seen, has found'expressly that the ice in question, before it was harvested, had no market-value. We are not able to infer that the admission of such evidence did no harm, as the contrary seems probable from the facts stated in the report of the referee. Again, witnesses were allowed to state, against the objection of the defendant, the value of the ice in. question before it was harvested. This seems inadmissible in regard to a commodity which had no market-value; and especially so when the opinion was received of some of the witnesses who were shown, by them own evidence, to have had no reliable knowledge or information in regard to the price or value of ice thus situated. (Morehouse v. Mathews, 2 N. Y., 514; Whitney v. Taylor, 54 Barb., 536; Cook v. Brookway, 21 id., 331; Harger v. Edmonds, 4 id., 256; Smith v. Griswold, 15 Hun, 273; Armstrong v. Smith, 44 Barb., 120.) The plaintiffs could only recover the damages which were real and not speculative; and in an action so peculiar in regal’d to its facts as the present one, great care should be exercised in adopting a proper basis for such estimate. It is contended by the counsel for the defendant, if we rightly understand his position, that if the plaintiffs are entitled to recover beyond nominal damages, they must be limited to the difference between the value of the real estate before and after the removal of the ice. (Argotsinger v. Vines, 82 N. Y., 309.) We do not undertake so to limit the inquiry, nor do we purpose to prescribe any particular rule to be followed in ascertaining the damages, as the facts may be changed upon another trial. We refer to Whitbeck v. New Vork Central Railroad Company (36 Barb., 644), which is mentioned and distinguished in Argotswiger v. Vines (supra).

The judgment must be reversed and a new trial ordered before another referee, with costs to abide the event of the action.

Learned, P. J., and Landon, J., concurred.

Judgment reversed, new trial granted, referee discharged, costs to abide event.  