Case Details
- Judge(s)
- Andrews
- Status
- Published
- Procedural Posture
- Appeal from General Term of Supreme Court affirming Special Term judgment for defendant
Related Laws
Outcome
Appellate court affirmed judgment in favor of defendant Nellis, rejecting plaintiff Newman's claim to compel removal of obstructions and enforce a right of way over defendant's land.
Excerpt
<p>Appeal from, judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made February 26, 1881, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to compel defendant to remove obstructions placed by him upon land over which plaintiff claimed a right of way, and to restrain defendant from interfering with or interrupting the use of said land as a way appurtenant to a lot of land sold and conveyed by defendant to Michael Newman, and by him conveyed to one Parkhurst, and by the latter to plaintiff.</p> <p>The material facts are stated in the opinion.</p> <p>The terms “ street,” “ road,” and “ highway,” have the same meaning. (Brace v. N. Y. C., etc., 27 N. Y. 273; 36 id. 122-3.) The purchaser had the right, from the deliberate and unqualified assertion of the defendant, to -presume that the latter knew the condition and situation of the strip of land and of his own title to it; and that it was, as he declared it to be, a street. (Favill v. Roberts, 50 N. Y. 225, 226, 227; Mattoon v. Young, 2 Hun, 564; Storrs v. Barker, 6 Johns. Ch. 169, 175; Tabor v. Bradley, 18 N. Y. 100, 115; Tilton v. Nelson, 27 Barb. 595.) The agreement as to the street having been executed was as effectual as if it were contained, or the privilege had been granted, in the same conveyance with the lot; or, as if, on refusal, its specific performance had been decreed. (Hervey v. Smith, 22 Beav. 299; Craig v. Craig, 2 Ont. App. 583-8; Goddard on Eas’ts, etc., 361; Tallmadge v. East River Bank, 2 Duer, 614, 618; 3 Bosw. 124; affirmed, 26 N. Y. 105; Musgrave v. Sherwood, 23 Hun, 669; S. C., 60 How. 339; 54 id. 311, 29 Hun, 475; Dempsey v. Kipp, 61 N. Y. 463-9, 471-2; Robbins v. Robbins, 89 id. 251, 257-8; Read v. Long, 4 Yerg. 68; Pope v. Devereaux, 5 Gray, 409; Smith v. Lee, 14 id. 480; Gage v. Pitts, 8 All. 531; Washb. on Eas’ts, etc., 35, § 12 [3d ed.].) Aft
What This Ruling Means
This summary was generated to explain the ruling in plain English and is not legal advice.
Similar Rulings
<p>APPEAL from District Court, Ada County.</p> <p>An action to establish a right to the possession of a right of way over which to divert water cannot be maintained exclusive of the fight to divert water, especially as against one who has such right to divert. {Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453.) There is only one way, so far as this controversy is concerned, to acquire the right to the possession of a right of way. over the public domain and that is as follows: “Whenever, by priority of possession, rights to the use of water for . . . agricultural .... purposes, have vested and accrued; .... the right of way for the construction of ... . canals .... is acknowledged and confirmed.” (17. S. Rev. Stats., sec. 2339.)</p> <p>Possessory rights to ditches and possessory rights to water may each have an existence independent of the other. That a person may convey a water right, reserving the ditch, or convey a ditch independent of the right to the use of the water accustomed to flow therein, is, we think, clearly within reason. A ditch is itself land. (Kinney on Irrigation, see. 224, and cases cited in note; Reed v. Spicer, 27 Cal. 58.) Interest in water ditch is real estate, and can only be transferred by deed, prescription or condemnation. (Burnham v. Freeman, 11 Colo. 601, 19 Pac. 761; Smith v. O’Hara, 41 Cal. 371.) For a case recognizing ownership of ditch in one person and ownership of watqp running therein in another, see ' Clifford v. Larrien (Ariz.), 11 Pac. 397. A ditch constructed on unoccupied public lands of the United States is held by grant, and the owner of such ditch does not forfeit his right thereto merely by nonuser. (Welch v. Garrett, ante, p. 639, 51 Pac. 405.)</p>
Disability, Ohio Civil Rights Act, Americans with Disabilities Act, Americans with Disabilities Act Amendments Act, Ohio Civil Rights Commission, substantially limits, physical impairment, constructive discharge, R.C. Chapter 4112, R.C. 4112.06(E), R.C. 4112.08, R.C. 4112.02(A), Adm. Code 4112-5-08(E), Adm. Code 4112-5-01, 42 U.S.C. 12102(4), 29 C.F.R. §1630.2(j)(1)(i), earnings, back pay
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