Ada County Farmers' Irrigation Co. v. Farmers' Canal Co.

<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

<p>Appeal, No. 263, Jan. T., 1896, by plaintiffs, from decree of C. P. Lackawanna Co., Sept. T., 1894, No. 5, on bill in equity.</p> <p>Bill in equity praying for an injunction to restrain the defendants from mining coal under certain lands claimed by plaintiffs. Before Gunster, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned■ was in dismissing bill.</p> <p>It is well settled by numerous authorities both in this state and in England that, where a severance of the surface from the underlying strata of coal or other minerals has taken place, no possession of the surface constitutes any possession of the underlying strata: Plummer v. Hillside Coal & Iron Co., 160 Pa. 483 Kingsley y. Hillside C. & I. Co., 144 Pa. 618; 1 Am. & Eng. Eney. of Law, 262; Putnam Free School v. Fisher, 34 Me. 172; Caldwell y. Copeland, 37 Pa. 431.</p> <p>Title to any of the minerals, quite distinct from the title to the surface, may be shown by documentary evidence; in the absence of such evidence, or in opposition to it, title to them may be made out by proof of possession and acts of ownership under the statute of limitations. The acts of ownership, however, which constitute possession and confer title must be distinct from such as are exercised over the surface: Tyrwhitt v. Wynne, 2 Barn. & Aid. 554; Cullen v. Rich, Buller, N. P. 102; Rich v. Johnson, 2 Strange, 1142; Caldwell v. Copeland, 87 Pa. 427; Armstrong v. Caldwell, 53 Pa. 284; MacSwinney on Mines, 526; Tliew v. Wingate, 10 B. & S. 714; McDonnell v. McKinty, 30 Ir. L. R. 514; Dartmouth v. Spittle, 19 W. R. 445 ; Ashton v. Stock, L. R. 6 Ch. Div. 726; Seaman y. Yawdrey, 16 Yes. 392; Barnes v. Mawson, 1 M. & Sel. 84.</p> <p>To constitute a continuous possession of mines, it is only necessary that the operations be prosecuted as continuously as the nature of the business and the custom of the country permit: Stephenson y. Wilson, 50 Wis. 95; Wilson v. Henry, 40 Wis. 594.</p> <p>This was an ejectmen