Majority
Headnote
1. Injunction—Trespass—Adequate Remedy at Law.The plaintiff’s paper title to the stream in question upon the locus in quo seems to be clear. It is derived from Stephen Van Rensselaer, who, by a perpetual lease dated October 24, 1831, demised 352 acres, embracing the premises through which the stream runs, to Elizabeth and Thomas Hun, excepting and. reserving' therefrom to himself, heirs, and assigns this stream and the soil under it, and the privilege of erecting mills and milldams and other constructions for the use thereof as he or they might think proper, and also such part of the land as might by said dams be" overflowed with water, and also the right of free ingress thereto and egress therefrom. Van Rensselaer conveyed the property and easements thus reserved and excepted to his son, March 13, 1837, and the plaintiff has, through mesne conveyances from the son, acquired the reserved and excepted property and easements in the locus in quo. The defendant has by mesne conveyances acquired the property first demised. The Huns and their grantees conveyed the land to the center of the stream, arid such is the deed to the plaintiff; but of course they could not convey any greater title than they held. 1 Rev. St. p. 739, § 143. The perpetual lease contained a clause that upon the use of the property and rights reserved a proportional abatement of the rent reserved should be made. On July 10, 1860, Orlando Meads executed a release of the rents reserved in the perpetual lease. The case does not show what right Meads had to make the release, but, assuming that he acquired title to the rents and to the right of reversion from the original landlord, yet, since the landlord had before the release parted with title to all interest in the property and easements reserved to himself, he could not, by releasing the rents reserved upon the land demised, impair his grantee’s title to such property and easements upon which such rents were not reserved.
The order should be reversed, with costs, and motion to vacate denied, with $10 costs, but without prejudice to a renewal of the motion. All concur.
Cases cited
- Meyer v. Phillips 97 N. Y. 485 p. 679
- Broiestedt v. South Side Railroad 55 N. Y. 220 p. 679
- Hunt v. Purdy 82 N. Y. 486 p. 679