
    In the Matter of the Application of Frank A. Hall, Appellant, for a Writ of Certiorari to the Assessors of the Town of Monroe, in the County of Orange, and the Town Clerk of Said Town, Respondents.
    Second Department,
    January 11, 1907.
    Watercourse — easement appurtenant to lands — wh'ere taxable.
    The right of a landowner,in one town .to draw'water for mill purposes from a pond situated in another town, through the natural outlet, he having no title to ■ the lands under the^ waters of said pond, is an easement, incorporeal in its nature, and is appurtenant to the mill property. Such easement is taxable as real property, but should be taxed in the town where the lands to which it is appurtenant are situated, and not in the town where the pond is located.
    
      It seems, that under some circumstances incorporeal rights in water may exist independent of- lands. 1
    Appeal by the petitioner, Frank A. Hall, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the.clerk of the county of Orange on the 11th day of October, 1905, upon ah order made at the Orange Special Term pursuant to a decision of the court dismissing a writ of certiorari theretofore issued in the proceeding. 1
    
      George R. Brewster, for the appellant.
    
      M. N. Kane, for the respondents.
   Hooker, J.:

The appellant is the owner of several acres of land in the town of Tuxedo, Orange county, and of a water right in the adjoining town of Monroe, and the respondents are the assessors of the town of Monroe. This proceeding was 'brought to set aside an assessment made by the respondents in the town of Monroe upon the water right owned by the appellant. Mt. Baslian pond is a body óf water, in .extent about a mile square, located in the town of Monroe. The outlet of the lake runs southerly, and at its head there- is' a dam, with gates by which the amount of water released from the lake may be augmented or diminished. S'ome three or- four miles southerly from the outlet, and' beside the stream, the 'appellant owns about seven acres of land, well within the town' of Tuxedo, The lands of several different owners intervene between the appellant’s premises and the town line. Erected upon the appellant’s lands.are'buildings used for a manufactory of wooden articles, and water from' Mt. Bashan pond supplies the power therefor. The plaintiff’s title to his seven acres in the town of' Tuxedo givfes him the right and privilege of Using or drawing off the water from Mt. Bashan pond, for the purpose of carrying on his war-lt in certain defined quantities and at certain times. He has no ownership in or to any of the lands under the waters of Mt. Bashan pond, or any of the lands adjoining it; his sole interest is the right to draw water from that pond through the natural outlet in defined quantities and at certain times.

The learned court below,- in quashing the writ, treated the appellant’s right to use this water as corporeal property, and spoke of it as physically lying in the town of Monroe and distant, from the mill property in the town of , -Tuxedo. This erroneous- premise has. naturally led to a false conclusion. The right did not have physical being ; it is incorporeal in its nature. The Court of Appeals has discussed the nature of the appellant’s right to use'the water of Mt. Bashan pond. In Hall v. Sterling Iron & R. Co. (148 N. Y. 432) one of. the questions presented for- consideration pertained to - the plaintiff’s ownership of that right. The paper title to one-half of his mill property had come to him with an omission in one of the mesne conveyances of any words of grant specifically addressed to the water right-; it contained this language: “ Together with all and singular the devices, buildings, rights, members, privileges, advantages, hereditaments and appurtenances to the same belonging or in any wise appertaining.” The court decided that, although the water right was not specifically mentioned or, otherwise referred to, % it was an appurtenance to the land and passed with it. The opinion states: The water flows through the natural outlet of Mt. Bashan pond. This watercourse passes through the plaintiff’s.premises. It is used in connection with the land, and cannot well be severed therefrom. It consequently is attached as an incident to it.” And the court held that Hall’s title to the whole premises was good.

That the right, if valuable, may be taxed is not • denied (People ex rel. Niagara Falls P. Co. v. Smith, 70. App. Div. 543), but it should.be taxed as a part of the real estate to which it appertains and to which it is incident.

In this case tlie water right lias connection with the appellant’s land in the town of Tnxedo, and, as has been held by the Court of Appeals, even passes with.the land by virtue of a conveyance that does not mention the water rights. To allow the right to he taxed in the town other than where the land itself is situated, might result in an anomalous situation. If the taxes on the mill property were not paid and the property sold under a tax sale, it would seem that under the Court of Appeals decision the right to use the water of Mt. Bashan pond would pass as an incident to the land, and the purchaser would own that right in connection with the mill property. Suppose, however, that the right itself were allowed to be taxed in the town of Monroe, and the taxes remaining unpaid, a tax sale should follow. It could easily he imagined that if the tax were valid, the purchaser at the sale would hold a valid title to the water right, and he would iind himself as tó his ownership at once at war with" the purchaser under the tax sale conducted in the town of Tuxedo. •

,It cannot he doubted that water rights incorporeal in their nature may, under certain circumstances, exist independent of lands, but that is not this case.

The conclusion is that the order and judgment appealed from should he reversed and the assessment annulled, with costs.

Hibschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Judgment and order reversed, with costs, and assessment annulled.  