Weed v. New York & Harlem Railroad

Headnote

Where there are no exceptions contained in the case,- as settled, nor any allusion to any, as having been taken at any time, there is nothing for this court to review.

Where the only exceptions taken relate exclusively to the' finding of the referee upon matters -of fact—no exception being taken to the decision upon the law—they present no question which this court ■ can review according to the settled practice.

Appeal from a judgment of the Supreme Court in the second district.

The action was brought to recover damages alleged by the plaintiff to have been sustained by him, by reason of the improper construction of the railroad through Ins farm, whereby a stream of water—convenient and useful for watering the plaintiff’s horses, cattle, &c.—was diverted from his lands, to his injury. Other causes of action were specified in the complaint, but no question arises as to any of them. On the trial, the plaintiff introduced evidence tending to show that the defendant, in constructing its road through the farm, turned a small stream of water, issuing from a spring on the west side of the railroad track, so that it did not run across said track into the field on the east side of the road as it did before said road was built. The action was tried before a referee, who found as matter of fact that, previous to the construction of the road by the defendant, there was and for a long time had been a stream of water running through said farm and emptying into the Cedar river. And that the defendant, about the first of January, 1848, constructed its road through and across said farm in such a manner as to divert said stream of water from its natural course, and thereby deprived the plaintiff of the full benefit of said stream, to his damage $70. As •a conclusion of law, the referee held and decided that the plaintiff was entitled to judgment for that sum, with costs of

the action. The case as settled contains no exceptions whatever. In the printed papers, however, after a general statement at the commencement—containing the time of the commencement of the action, the reference, time of trial, the finding of the referee, the amount of the judgment, with an abstract of the pleadings—the first paper is found entitled in the action as follows: “ To which report the said defendant duly excepted as follows: Is#. The said report is not warranted by the evidence. Because, .if the said stream was convenient for watering cattle, &c., as described >n complaint, it was not diverted or changed from plaintiff’s possession. Most of the railroad lands, and lands in plaintiff’s possession east of the railroad, were at all times abundantly supplied with water. 2d. The diversion only «hanged the stream on plaintiff’s land, and returned and restored it to lands in possession of the plaintiff, east of the railroad. And, lastly. The report of the referee does not show for what time, and when and wherein the plaintiff Was injured to the amount of the referee’s report.” This purports to be signed by the defendant’s attorney. There is nothing preceding this in the printed papers to show to what it refers. Then follows the summons and complaint, the answer, order of reference, the referee’s report and judgment. But it does not appear in any way whether this paper, purporting to be exceptions, forms any part of the judgment roll. The defendant appealed to the general term of the supreme court, where the judgment was affirmed, and then brought his appeal to this court. The cause was submitted on printed case and points; without argument.