
    Rathbone v. McConnell et al.
    
    
      Costs.—Claim of Title.
    
    In an action for the diversion of a water-course, wherein the plaintiff recovers less than $50 damages, a general denial of the allegations of the complaint presents no claim of title, so as to entitle the plaintiff to costs, under § 304 of the code ; nor does an answer setting up a paroi license.
    Rathbone v. McConnell, 20 Barb. 311, affirmed.
    Appeal from the general term of the Supreme Court,' in the seventh district, where an order made at special term, allowing costs to the plaintiff, on a recovery of less than $50, had been reversed, and costs awarded to the defendant. (Reported below, 20 Barb. 811.)
    This was an action to recover damages for the diversion of a water-course. The defendants by their answer denied each and every allegation of the complaint; and for a further answer averred that the diversion was “ with the leave, license, permission and consent of the plaintiff,” for the purpose of feeding an aqueduct for supplying a village with water. *Upon the trial, the plaintiff had a verdict for $25 damages; and the clerk, upon the adjustment of the costs, allowed them to the defendants; the clerk’s decision was reversed at special term; but, on appeal to the general term, the judgment was reversed, and costs awarded to the defendant; the plaintiff, thereupon, appealed to this court.
    
      Barnes, for the appellant.
    
      Kernan, for the respondents.
   Denio, J.

The code gives costs to the plaintiff, on a recovery in the supreme court for any amount, “ in an actian for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question on the trial.” (§ 304.) The present was an action to recover damages, and not property; and there was no certificate as to the questions litigated on the trial. If, therefore, the plaintiff is entitled to costs, it is because a claim of title to real property arose on the pleadings. I am of opinion, that the pleadings do not show any such claim of title, by either of the parties, within the sense of the enactment. The complaint charges the defendants with diverting the water of a stream, which formerly ran through a piece of land owned by and in the possession of the plaintiff, by means of channels or sluices cut in the banks of the stream, above his land. The first answer is, a general denial of the allegations of the complaint; this would compel the plaintiff to prove the possession which he had alleged, and this proof would entitle him to maintain the action, if he could also prove the injury. The defendants did not set up any title to the plaintiff’s close, and could not have been permitted to prove any, under these pleadings. It is not to be intended, that the plaintiff would undertake to give any other evidence of ownership than that which he alleged, to wit, possession, or that any question of paper title would be litigated on the That no question of title, * within the acts respecting costs, was presented, under sue! circumstances, has been decided in two cases. (Ehle v. Quackenboss, 6 Hill 537; Brown v. Majors, 7 Wend. 495.)

The second answer sets up ignorance, in the form prescribed by the code, as to the plaintiff’s owning or being in possession of the close mentioned in the complaint. This puts in issue one of the matters embraced in the general denial; and if that general denial did not raise a question of title, this special one does not. The third answer is foreign to the question; it being only a denial of the acts of diversion imputed to the defendants.

The fourth and last answer sets up that the defendants' acts were done with the leave, license, permission and consent of the plaintiff, first made, given and granted, and that, under such leave, license, &c., the defendants and other persons constructed an aqueduct, to conduct water from a certain spring, to supply the inhabitants of the village of Howard with water. The action being brought for damages for the alleged diversion, up to the time of the commencement of the action, and not for an injunction against its continuance, or to establish the plaintiff’s right to the water alleged to be diverted, the only answer which the defendants were obliged to interpose was a sufficient legal excuse for what they had already done. It was no ways essential, that they should have an estate in the land benefited by the easement, or that their right should extend, in point of time, a moment beyond the time of commencement of the suit. Although a mere revocable license would be enough to establish a defence, still they might have set up a grant, or a title by jjrescription, of a right to divert the waters of a stream, if such was the nature of their claim. This would have been an easement burdening the plaintiff's premises for the benefit of the lands, for the advantage of which the diversion was made. If such a grant or prescription had been set up, it would have entitled the plaintiff to costs, under the provision on that subject in the revised statutes. (2 R. S. 613, § 3.) And I am of the of the opinion, that the same construction ought to be given to the section of the code under consideration, though the language is much less explicit. (Heaton v. Ferris, *1 Johns. 146; Eustace v. Tuthill, 2 Id. 185; Tunnicliff v. Lawyer, 3 Cow. 382; Chandler v. Duane, 10 Wend. 563.)

But the defendant did not set up any grant or any title by prescription. The language, like most of that used by pleaders under the present system, is extremely loose and vague; but it is sufficient, to set forth a simple license, and quite insufficient as an averment of an estate. Laying aside the idea of a prescription, which is not alluded to in the answers, I do not find any intimation of a grant. Such an instrument must be in writing, and there must be parties, grantor and grantee, and it must be under seal. The former system required that it should be pleaded with a proferí-, although that form is not now necessary, and no great precision on any subject is required, still, when we are asked to understand a pleading as setting out a grant, we ought at least to find some allusion to an instrument of some kind. The words used in this answer—leave, license, permission and consent— suggest the idea of a verbal communication, and, by a strong implication, negative the notion of a deed. The words made, given and granted, which are added, and Avhich qualify the first-mentioned Avords, do not enlarge the idea. The latter word, AAdiieh is relied on, is obviously used in a popular and not a technical sense; it agrees very Avell Avith leave, permission, &c,, which may properly be said to be granted.

Again, a grant of such an easement as is supposed to bo set up in this answer must, to he valid, be annexed to some other estate in land, to Avhich it becomes appurtenant, If conferred personally upon one avIiq has no other estate, it may operate by Avay of covenant, but does not constitute a title; and it is nowhere intimated that the defendants oAvned or Avere possessed of any land upon Avhich the water could be diverted. I am, therefore, of opinion, that the answer should be understood, as I have no doubt it was intended, as setting up a verbal license to do Avhat the complaint alleges the defendants have done. It has been repeatedly decided, that the defence of license to do an act upon land does not involve a question of title, Avithin the sense of the provisions respecting cost. *(Otis v. Hall, 3 Johns. 450; Chandler v. Duane, supra; Wickham v. Seeley, 18 Wend. 649.) And I am not aware that the contrary has ever been held,

I am the more persuaded that no injustice is done to the plaintiff, by construing his pleading as I have done, by the consideration that, if there had been any real question of title on trial, a certificate of the judge Avould have been obtained, Avhich Avould' have been equally effective as an issue upon title in his pleadings. Relying, as the plaintiff does, upon the pleadings alone, I am bound to say, that he has failed to establish a claim to costs, and I think they Avere rightly aAvarded to the defendants. I am, therefore, in favor of affirming the-judgment of the supreme court.

Bacon, J.

(Dissenting.)—The only question presented by this case is, Avhether the plaintiff is entitled to costs against the defendants, and that depends upon the question, Avhether a claim of title to real property arises upon the pleadings. The complaint was for injury to the plaintiff, by reason of the permanent diversion of a stream of Avater from the lands of the plaintiff, Avhere it had been accustomed to run, by means of a trench and channel dug by the defendants above the premises. The plaintiff averred that he Avas the OAvner, and in possession of the premises, Avith the appurtenances,” from which the diversion was made.

The answer consists, first, of a general denial of all the allegations of the complaint; secondly, a denial of knoAvledge or information sufficient to form a belief as t-o the ownership and possession of the plaintiff; thirdly, a denial of any deprivation or diversion of the Avater, as claimed by the plaintiff; and, fourthly, of an allegation that defendants, at the request of plaintiff, and with the leave, license and permission of the plaintiff, first “made, given and granted,” constructed an aqueduct to convey, and by means of which they did convey, the *Avater, &c., to the village of HoAvard, “ for the purpose of supplying the inhabitants of the said village with water,” Avhich is the unlawful diversion of the water of the stream or water-course, from the lands of the plaintiff, alleged in the complaint.

The provision of law applicable to this subject is as follows: “ Costs shall be allowed, of course, to the plaintiff, upon a recovery, when a claim of title to real property arises upon the pleadings.” (Code, § 304, sub. 1.) Does such a question arise upon these pleadings? It will be seen, that, in the complaint, there is a specific allegation of both ownership and possession of the premises, and that the answer denies every allegation of the complaint. It is quite probable, that it would have been sufficient for the plaintiff to have alleged possession alone, and that proof of this would have entitled him to recover, unless the defendants had set up, on their behalf, and proved, a paramount title. But having alleged the ownership, and the defendants having distinctly taken issue upon it, it became incumbent upon the plaintiff to go down to trial prepared to establish his title to the premises. Nor is it any answer to say, that the defendants may have been willing to, or in point of fact did, upon the trial, concede the ownership of the plaintiff; because, if the defendants put the title in issue, and compel the plaintiff to prepare to prove it, they cannot relieve themselves from liability to pay costs, by admitting the title upon the trial. (Niles v. Lindsley, 1 Duer 610.) The defendants might have relieved themselves of this liability, by admitting the title, and denying the possession; but having taken the distinct issue, I am of opinion, that they are estopped from denying that the plaintiff was bound to be prepared to prove his title upon the trial, and the question being thus presented by the pleadings, the plaintiff is, of course, entitled to his costs, whatever may be the amount of the recovery. ,

But, if mistaken in this conclusion, it seems to me quite clear that, under the fourth defence, the question of title is fairly presented. It sets forth a license to do the thing complained of, made, given and granted by the plaintiff, for the purpose of supplying the village of Howard with water. Notv, this is *not a mere license . to the defendants to do some act upon their own land, which may he attended with some consequential inquiry to the plaintiff, nor do some act upon the land of the plaintiff, hy virtue of a license revocable at pleasure, but it is the assertion of a claim to a permanent and continuing right, to take- from the plaintiff a part of his real property, and devote it to the purposes of the defendants, by a perpetual appropriation. The right which the plaintiff claims is a corporeal hereditament appurtenant to, and so connected with, the enjoyment of his premises, as to constitute an estate in land which can only be created or aliened by deed. The statute, which provides that no estate or interest in lands shall be created, granted or assigned, unless by act or operation of law, or by deed or conveyance, &c., declares that such estate or interest shall embrace “ every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent, in lands, tenements and hereditaments.” (2 R. S. 134, § 6; 137, § 6.) The case of Mumford v. Whitney (15 Wend. 380) appears to establish, very clearly, the proposition, that such an interest as is claimed by the defendants here, consisting of a total diversion of the water from the plaintiff’s premises, and that, not for a mere temporary purpose, and to be restored when the object is accomplished for which the diversion takes place, is such an interest as can only pass by a conveyance executed with the solemnities required .to pass real estate. (See also, to the same effect, Davis v. Townsend, 10 Barb. 333.)

When the defendants, in their answer, set up that the license claimed was first made, given and granted by the plaintiff, language is used which conveys the idea of a legal grant, with all the requisite formalities to convey an interest in real estate—an interest, not for a fugitive or temporary purpose, but to supply water to the populotion of a neighboring village, for all time to come, and to the utter exclusion of the plaintiff from any right to, or usufruct of, the water thus diverted. A verdict, upon such an answer, in favor of the defendants, would probably have for ever established the claim set up by the defendants; and it was, above all things, necessary for *° come to the trial with proof which should set his title at rest, and overthrow, if he could, a claim, not, like' many found in the books, to overflow his land, or slightly or transiently divert his. water-course, but to deprive him wholly, and for all time to come, of a valuable part of his inheritance. If title can, by any form of pleading, be put in issue, it would seem, that this answer presents such a case.

I do not think it would be profitable to go through and examine the various cases that are to be found in the books, both upon the former and the present statutes on this subject. It may be conceded, that the provision is now essentially the same that it has been since the Revised Laws of 1813, with only some slight change in the phraseology. The cases are not uniform, nor wholly consistent with each other, and I find none where the precise question which these pleadings present is passed upon. The nearest approach to an adjudication upon this point is in the case of Powell v. Rust (8 Barb. 567). The complaint in that case averred ownership and possession of the premises in the plaintiff; the defendant set up in.his answer, an agreement by which he claimed the right to remove certain vines and shrubbery, and averred that he entered by virtue of that agreement, and under the license and consent of the plaintiff for that purpose given. The plaintiff recovered five dollars only, and the court allowed costs to the plaintiff, upon the express ground that a claim of title to real property arose upon the pleadings. The court, in that case, say, that whatever grows upon and is annexed to the freehold is real estate, and the question of the right of property in the shrubs, &c.. growing on the plaintiff’s land is a question of title under the act.

The case before us seems to be a much stronger one, and to involve a right of a much higher nature—a right, the possession and permanent retention of which can only be challenged and maintained by the defendants, through a conveyance assuring to them the title and the right; and if so, the conclusion is irresistible, that a claim to real property was presented by the pleadings, *My opinion is, that the judgment of the general term should be reversed, and that of the special term affirmed.

Judgment affirmed. 
      
       That the plea of 1 ‘leave and license, ” is not a claim of title, so as to entitle the plaintiff to costs, where he recovers less than $50 damages, ¡swell settled. Mechl v. Schwieckart, 67 Barb. 599. So, if no issue be taken on the plaintiff’s averment of title, but the cause is tried on other grounds, the defendant, in such case, is entitled to costs. Learn v. Currier, 15 Hun 184; affirmed by the court of appeals. And so also, where the defendant takes issue, not upon the plaintiff’s averment of title, but on the possession. Guernsey v. Davidson, 7 Alb. L. J. 204.
     