Howe's Cave Lime & Cement Co. v. Howe's Cave Ass'n

The parties are owners of adjoining lots of land at Howe’s Gave, N. Y., and engaged in the business of manufacturing lime, cement and building stone. Plaintiff claimed that defendant had opened a tunnel on its land about twenty rods distant from the premises of the former, and through such tunnel reached the land of said company under the surface, had trespassed thereon, and taken and removed therefrom a large quantity of valuable material. The affidavit of the manager of the plaintiff, used on the motion, states: “ That the deponent gained admission to said tunnel and made some crude measurements therein alone, and that in his opinion, based on the said crude measurements so made by him, the defendant has wrongfully and unlawfully taken out of said tunnel and used of the cement stone of this plaintiff covering a space of about three rods wide and forty rods in length, and of the height of about seven feet; that the length of said tunnel, before it reaches the plaintiff’s

The plaintiff commenced this action to recover damages for the said alleged trespass and injury to its premises, and obtained an order that plaintiff might enter upon defendant’s premises to make a survey within the said tunnel and on the surface of defendant’s land, under the provisions of section 1682 of the Code of Civil Procedure, which reads as follows : “ If the court, in which an action relating to real property is ¡rending, is satisfied that a survey of cmy of the property m possession of either party, or of a boundary line between the parties, or between the property of either of them and of another person, is necessary or expedient to enable either party to prepare a pleading, or prepare for trial, or for any other proceeding in the action, it may, upon the application of either party, upon notice to the party in ¡possession, make an order granting to the applicant leave to enter upon that party’s property to make such a survey.”

Defendant appeals from the or.der so granted, claiming that the provisions of section 1682 do not apply to this action.

It clearly appears from the moving affidavits that the action which the plaintiff has commenced relates to real property. On the trial plaintiff will be compelled to show its title to the premises in question, and also that defendant has trespassed thereon and removed stone and material therefrom. An action of trespass against a defendant for entering on land of another and cutting down and carrying away vrood and timber is placed, in the Code of Civil Pro

But section 1682 {supra) is contained in article 9, title 1, chapter 14, part 2, Code of Civil Procedure, and the title of article 9 reads as follows: “ Provisions applicable to two or more of the actions specified in this title.” The learned counsel for the appellant urges that such an action as the moving papers show that plaintiff has commenced is not specified in title 1 {supra), and, hence, the provisions of section 1652 do not apply; that the provisions of section 1682 are only applicable to an action specifically mentioned in title 1, as actions of ejectment, partition, dower or foreclosure; • actions to compel the determination of claims to real property; actions for waste and nuisance; that the 8th article of title 1, entitled “ other actions relating to real property,” does not mention such an action as the one under consideration, although it does refer to actions of trespass for cutting down and carrying away wood or timber. The .learned counsel, therefore, insists that although section 1682 applies in the case of an action for trespass in entering upon land and cutting down wood or timber, it will not so apply where the action is brought for trespass in entering upon land and removing stone and material therefrom.

As we have seen, the suit clearly relates to real property. We think the language of section 1682 should be deemed applicable to all such actions. There is no ambiguity in the provisions of the section. By its terms it applies generally to- an action relating to real property. It has been held that the title- of a public act is no-part of it. (Jones v. Sheldon, 50 N. Y. 477 .)

“ We may resort to the title of an act for aid when the statute itself is doubtful or ambiguous, but not where the language is apt and the construction plain.” (In the Matter of Village of Middletown, 82 N. Y. 196 -199; People v. O’Neil, 54 Hun, 610 , 611.)

The provisions of section 1682 being not ambiguous and applying generally to an action relating to real estate,, we do not think that such provisions are limited hy the title of article 9. This view as to the construction of section 1682 is the-more-reasonable one. Eor instance, under section 1665, article 8 (supra), one seized of an

It will be observed that the provisions of the section immediately preceding section 1682 (supra) in terms limit the application of the provisions therein contained to actions specified in title 1 (supra), while section 1682 is made applicable generally to an action relating to real property. As there is no ambiguity in the section, and it appears applicable to all actions, we think it is not limited by the title of article 9. (See People v. O'Neil, 54 Hun, 610 ; The Mayor, etc., v. Eisler, 2 Browne’s N. Y. Civ. Proc. Rep. 125.)

It is also'daimed that the survey which the court by section 1682 is authorized to allow is a surface survey, and that an entry into or survey of an erection or inclosure on the premises of a party cannot be allowed. But the section authorizes a survey of property in the possession of a party and an entry upon his premises. The ■court may grant the applicant leave to survey am/y of the property in possession of the opposite party! “ Survey ” means “ to inspect or examine with reference to situation, condition and value; ■* * * go determine the boundaries, extent, position,” etc. (Century Dictionary.) The language of the statute seems to authorize the order in question. In a proper case we can see no good reason why the court, under section 1682, may not direct a survey of a defendant’s premises through a tunnel under the surface as well as upon the surface.

In this case the moving affidavits, which were not contradicted, showed a state of facts which rendered the order granted by the Special Term proper. It appeared that defendant had entered upon

The moving affidavits made it appear that a survey of the property in the possession of the defendant was necessary and expedient, viz.: Of the tunnel through which it had entered on plaintiff’s property and removed material therefrom. It is only by means of such a survey that the plaintiff will be able to properly prepare for trial. While the affidavits read on the motion show a trespass, they also show that plaintiff was ignorant of the amount of material taken by defendant from its premises, and the plaintiff can only ascertain such amount by being allowed to survey the tunnel. The order appealed from seems to be authorized by section 1682, and to be just- and reasonable. The moving party established the commission of a wrongful act on the part of the defendant, and unless plaintiff can make the survey applied for it is practically remediless, being unable to state or show the amount of its damage.

This case is not similar to that of Hayden v. Van Cortlandt ( 84 Hun, 150 ). Here the manager of the plaintiff has entered the tunnel and made crude measurements therein, and on such measurements reached the conclusion that defendant had trespassed upon and removed material from plaintiff’s lands. It is true he is hot certain, but in the absence of any contradictory deposition his affidavit is sufficient to sustain the order.

It is suggested by the appellant that plaintiff is securing by the order appealed from the aid of the court to compel the defendant .to furnish proof that may be used against its officers and agents in criminal proceedings, and upon the trial of indictments for larceny. It is- sufficient to say in answer to this position that the papers in the case did not show the fact that the alleged trespass of defendant upon plaintiff’s premises and the removal of .material therefrom was an intentional or criminal act. In the absence of any evidence in that regard the action of defendant of which the plaintiff complains will be presumed to have been done by accident or mistake, with out any criminal intent.

Again, the order does not compel defendant to furnish evidence

The order should be affirmed, with ten dollars costs and disbursements.

HeeRICK, J., concurred; Mayham, P. J., not acting.

Order affirmed, with ten dollars costs and disbursements.