
    Hoag v. Pierce.
    
      (Supreme Court, General Term, Fourth Department.
    
    September, 1892.)
    1. Title to Hiqhwat—Evidence.
    In an action to restrain defendant from destroying a well which is in the street on which defendant’s lot abuts, the evidence disclosed that defendant’s lot is described in the title deeds as bounded on-the “north by the south bounds ” of the street; that in 1800 a/turnpike company was authorized to “acquire and hold to itself and successors, forever, lands” for its road; that such company occupied the street in question until it was “turned over to a .plank road company;” that Laws 1854, c. 87, provided that, if the plank road company should abandon its road, the property should become the property of the town; that neither the turnpike company nor the plank road company have occupied the street for more than 20 years, • but that the same has been under the care and control of the village. H.elcl, that the fee of the street is in the public, and defendant has no right to destroy the well.
    3. Injunction—Destruction of Public Well.
    Where plaintiff and others have, for more than 20 years, used a well located in a street, the fee of which is in the public, and have contributed towards the maintenance of a pump and repairs of the well, defendant, who has no interest therein except in its use with the public, will be restrained from destroying the pump, and converting all the water to his private use.
    Appeal from special term, Onondaga county.
    Action by David W. Hoag against Edwin O. Pierce to restrain defendant from preventing plaintiff’s use of a well. Plaintiff had judgment, and defendant appeals. Affirmed.
    Parties owned parcels of real estate situated on the south side of Main street, in the village of Elbridge, upon which properties are two hotels. In Main •street, opposite the premises of the defendant, some eight feet outside of the curbstone, and south of the center line of the street, is situated a well in which is a pump from which water has been drawn for the use of sundry persons residing in the vicinity for a period of some 50 years. Apparently the pump was kept in order by contributions from the persons using the water from the well. Defendant was about to insert a pipe in the well, and conduct the water into that portion of his premises embraced within the inclosure thereof, and to remove the pump, and to prevent the plaintiff and others from enjoying the use of the well as it has been enjoyed by the.plaintiff and his predecessors in title and other neighbors for a great period of years. This action was brought to restrain .the defendant, and an injunction obtained and continued down to the trial, and made permanent by the decision at the trial. In the complaint is the following allegation: “And plaintiff alleges, on information and belief, that said defendant is the owner of the premises in said village described as follows, to wit: All that tract or parcel of land situate in the village of Elbridge, county of Onondaga, and state of Hew York, being part of lot Ho. 83, in said town, consisting of the hotel property in said village, bounded and described as follows, to wit: On the north by Main street; <$n the east by South street; on the south by lands of the late Mrs. Carpenter, and formerly owned by Newell O. Merriman; on the west by land formerly owned by J. & E. Ingerson and the estate of Nathan Munroe,—containing one acre of land, be the same more or less, said premises being commonly known as the • Munroe House,’ in said village.” In another part of the complaint it was alleged as follows: “And plaintiff further alleges, on information and belief, that said well is not on the premises of the said defendant, the same being within and upon the land of said Main street, and about twelve feet north of the defendant’s north line and the south line of said Main street; that neither the said defendant, nor any other private person, has any right whatever to remove or till up, or change or alter, said well or its location, or to do any other act or thing whatever, (except to use in common, with numerous other persons herein described and mentioned, the waters thereof.) which may in any way or manner abridge or interfere with the free and unobstructed use of and the right to the use of the waters of said well, by the said public, including the plaintiff and the numerous other persons described and referred to herein.” In the answer of the defendant were the following words: “And the defendant, for further answer to said complaint, alleges that he is the owner in fee of the premises upon which said well is located; that said premises are described as follows:” (Then follows a description like the-one which has been quoted from the complaint.) The trial court found “that, the well mentioned in the complaint was dug more than fifty years ago in the public highway running easterly and westerly through the village of Élbridge, and about twelve feet from the south bounds of said street, between the sidewalk on the south side and the beaten track of carriages and teams; and that said well has stood there ever since, and its waters have been enjoyed by many persons, including the plaintiff, residing in the immediate vicinity, and their predecessors and grantors, for more than twenty years before the commencement of this action, such waters having been so used by the plaintiff and said persons as their water supply for domestic use;” and also found “that the ■ plaintiff is the owner or occupant of the premises, used by him as-a residence and hotel, in the immediate vicinity of said well, being a few rods westerly on the south side of said street, and that he has been such occupant and in possession thereof for about four and a half years under a contract to purchase the same, and that, for more than twenty years prior to the commencement of this action,- he and his predecessors and grantors had continuously and uninterruptedly used the waters from said well, and his predecessors for more than twenty years before his occupancy began had so used the waters, and that the plaintiff and his predecessors, and the other persons using said waters and their predecessors, had contributed to keep said well in repair, the expense being in part defrayed by subscription.” The court also found, as a matter of fact, “that the defendant is the owner and occupant of certain premises adjacent to the south side of said street, north of which the well is located, but is not and was not at the commencement of this action the owner of said well, nor of the land in said street, within which said well is situated.” The court found as a fact that the defendant “wrongfully, and without right, threatened to and attempted to take up said well, and to close up the well, and conduct the waters thereof, by means of a pipe^ under the surface of the ground, within an inclosure on his own premises, formed by his buildings and a high and close board fence and partition, which he had built previously, and that the effect of said act would be to deprive the plaintiff, and others of like interest, of access to said well except by defendant’s consent, which acts were restrained by the temporary injunction granted in this action.” And the court also found “that the plaintiff, and the other persons of like interest, by the open and uninterrupted use of said well by himself and his predecessors in the ownership of said premises occupied by him, and having so used the same for more than twenty-five years next preceding the commencement of this action, and without hindrance or objection from the real owners of said' well, has acquired, as against the defendant, the right to use said well in the way he and they had been accustomed to use it. ”
    As conclusions of law, the court found “that the plaintiff had the right, as against the defendant, to the use of said water at the time of the commencement of this action, and now has it, and that the defendant had no right to do the acts threatened or attempted by him, or to close or cover up said well, or to conduct tbe waters thereof upon his own premises; nor had the defendant the right to do any act which would impair, abridge, or interfere with the right of the plaintiff to use and enjoy the waters of said well in common with others of like interest, except the right to use the same in common with the plaintiff and said persons; that the plaintiff had the right to bring this action to restrain the defendant from doing the acts threatened or attempted by him, and he is entitled to the following judgment and relief as against said defendant, viz.: (1) That it be adjudged that, as against this defendant,the plaintiff, and others of like interest, have the right to perpetually draw and use the waters from said well in common, as heretofore. (2) That the defendant, his agents, servants, heirs, and assigns, be perpetually enjoined and restrained from interfering with said well, and from taking up or filling up said well, or removing the same, or said pump, and from any and all acts that may impair, abridge, hamper, or interfere with the rights of plaintiff and others of like interest in the use of the water of said well in its present location, excepting that the defendant may use the same in common with plaintiff and said other persons. ” Exceptions were filed by the defendant to several parts of the decision, and to the refusal to find in accordance to several requests made by the defendant.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      A. W. Shurtleff and Louis Marshall, for appellant. Frank D. Wright and F. C. Cushing, for respondent.
   Hardin, P. J.

It is insisted in behalf of the appellant that by the pleadings it was conceded “that the defendant was the owner in fee of tbe land on which the well stood.” In the complaint it was alleged “that said well is not on the premises of the said defendant, the same being within and upon the land of said Main street, and about twelve feet north of defendant’s, north line and the south line of said Main street.” Reading that allegation in connection with the averment in the earlier part of the complaint, to the effect that the premises of the defendant were bounded on the north by Main street, it must be assumed that the words of description found were used for the purpose of indicating, in a general way, the occupation of premises by the defendant. Again, upon the trial it is apparent that the position was taken by the plaintiff that the defendant only owned to the side of the street, and gave evidence tending to support that position, and the defendant so understood during the progress of the trial, and gave what evidence he was able to upon the issue of the actual ownership of the well in question. Ho attention seems to have been called to the peculiar language of the answer relied upon now by the defendant with a view of sustaining his position that the complaint, in effect, averred ownership in the defendant of the well in question. We therefore think the court was called upon to find, as a matter of fact, and determine, whether or not the defendant owned the well in question. Upon that subject plaintiff furnished evidence from the earlier deeds relating to the defendant’s premises, showing that his premises were bounded by the south side, of Main street, and therefore that he was not an owner to the center of the street. .Besides.it appears in the evidence that, as early as the year 1800, by chapter 78 of the Laws of that year, the “old Seneca Turnpike, or Seneca Turnpike,” was incorporated; and that “it was empowered to acquire and hold to itself and successors, forever, lands, wherever it should deem it most convenient to build its, road between Utica and Cayuga county, N. Y. ” Evidence was given tending to show that the turnpike company occupied the premises where the well is situated for a long period of years, and down to the time when “it was turned into a plank road company.” By chapter 97, Laws 1850, the Seneca Boad Company was authorized to sell or to abandon its road, or parts thereof. By chapter 87, Laws 1854, it was provided that, if the plank road company should abandon its road, the property should become the property of the town. It appeared by the evidence of Luke Banney that the Seneca Boad Company operated its road “ until it was turned into a plank road company.” It appears by the evidence that it has not been operated either by the Seneca Company or by the Plank Boad Company for more than 20 years, and that the street has been under the care, supervision, and in the use of the incorporated village of Elbridge at the place where the well is situated. It seems, with this evidence before the court, the assumption that the roadway or well was owned by the village of Elbridge was warranted; and, that being so, the language found in the defendant’s deed was “satisfied by a title extending only to the roadside, ” according to the rule laid down in Dunham v. Williams, 37 N. Y. 251, especially when we recall that the earliest deed in the defendant’s chain of title bounded the premises occupied by the defendant on the north by the south bounds of Main street. Dunham v. Williams, supra, was referred to approvingly in Insurance Co. v. Stevens, 87 N. Y. 287, and, at the close of the opinion in that case, Andrews, C. J., said: “The side of the road may have been made the boundary of the land conveyed, upon the mistaken supposition that the company had acquired, by the proceedings for condemnation, the absolute title to the land taken, or some other reason may have existed for restricting the grant. But we have no guide in ascertaining the intention of the parties to the conveyance, outside of the language of the deed, and upon this language, as interpreted by the courts of this state, in analogous cases, we think the southerly side, and not the center of the Wallabout road, is the boundary.” We think the trial judge was warranted in applying that rule to the case made before the special term.

2. It was made apparent by the evidence upon the trial that the plaintiff and his predecessors in interest for more than 20 years had enjoyed the use ■of the well, and had from time to time contributed to the expense for the maintenance of a pump therein, under an assumption and claim of right to the use of water from the well. The. learned counsel for the defendant ■calls our attention to Burbank v. Fay, 65 N. Y. 65. In that case it was held: “No private use or occupancy, whether adverse or by permission, however long continued, will vest a title inconsistent with a' public right, or will impair or affect the rights of the state.” It seems that the use made of the well in question by the plaintiff, as well as others, was not inconsistent with •the public rights in the street; did not interfere with the right of way or public passage; on the contrary, contributed to the comforts and needs of the public for a long series of years; and the enjoyment of the waters of the well, and of the use of the pump by the plaintiff, in no way tended to interfere with the public passage, or use of the street or highway. In Meyer v. Phillips, 97 N. Y. 489, referred to by the appellant, the use made of a stream across the plaintiff’s land had been for only a few years in floating logs, and it was therefore held that there had been no easement acquired by prescription. We see nothing in the case which aids the appellant. The evidence before the special term warranted the finding that the defendant contemplated, not only removing the water by means of a conduit from the well into his inclosure, but that he threatened to and contemplated a destruction of the pump. The plaintiff had contributed and had a proprietary interest therein which the defendant was not entitled to destroy as he threatened to do before the commencement of this action. We think from the evidence before the spe•cial term the conclusion reached, that the defendant should be restrained from conducting-the waters away from the well, covering up and destroying the usefulness of the well, and taking down, removing, or destroying the pump then in use in' the well, towards the purchase of which the plaintiff had.contributed, was warranted. In City of Cincinnati v. Lessee of White, 6 Pet. 431, it was held: “There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.” In the course of the opinion in that case, in considering public dedications and the dedication of an easement for the use of the public, it was said that the doctrine was applicable to dedication of lands to public use, and that the doctrine had been applied by that court “to the reservation of a public spring of water for public use, in the case of McConnell v. Trustees, 12 Wheat. 582;” and the court added: “The reasonableness of reserving a public spring for public use, the concurrent opinion of all the settlers that it was so reserved, the universal admission of all that it was never understood that the spring lot was drawn by any person, and the early appropriation of it to public purposes,” were decisive against the claim. See Denning v. Roome, 6 Wend. 657. We think the decision made at the special term should stand. Judgment affirmed, with costs. All concur.  