WATER-COURSES.

1. Plaintiff, a water-works company, organized under the act providing for the incorporation of such companies (Chap. 737, Laws of 1873, as amended by chap. 415, Laws of 1876), located and constructed a dam and reservoir upon the P. river, and in May, 1886, filed a map showing the location and the lands necessary to be taken, and entered into contracts with several villages to supply them with water. It had, prior to May, 1888, 2. acquired the lands occupied by it, and the right to divert the water of the stream from the riparian owners below the dam, except one H., and had commenced proceedings to acquire his rights. On April 9, 1888, the company adopted a map and plans for two additional reservoirs, which were not contemplated at the time of filing the original map, one to be located on lands acquired by it below the land of H., which map was filed May 7, 1888. It had also acquired the rights from the riparian owners below H. to divert the water at such lower reservoir. Before this, however, but while plaintiff was prosecuting with diligence and in good faith the proceedings to acquire the rights of H., defendants. who composed the board of water commissioners of the village of T., with actual notice of what plaintiff had done, undertook to locate a dam and reservoir upon the lands of H., filed a map thereof and instituted proceedings to condemn for their use the riparian rights of H. In an action to restrain defendants from constructing such dam and reservoir, held, that neither plaintiff's original plan, as shown by the map then filed, nor the rights acquired from the riparian owners below, deprived defendants of the right to locate their works upon the same stream below defendants' works; that the fact that defendants succeeded in filing their map before the plaintiff filed its second map, did not necessarily give defendants the exclusive right to condemn and acquire the lower riparian rights; that plaintiff, before filing that map, had the right to enter upon and acquire the lands and

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water rights required for the additional reservoir, and that the rights so acquired were not impaired by the filing of defendants' map; nor did that act give to them the right to acquire by condemnation proceedings plaintiff's rights in the stream below; and as their proposed dam and reservoir would interfere with those rights, plaintiff was entitled to the relief sought. P. W. W. Co. v. Bird.

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Plaintiff, in its contracts with the riparian owners. contracted to supply them with water. It was claimed on the part of defendants that the rights so acquired were not for, and had not been devoted to, the public use, and were not necessary for the purposes of plaintiff's incorporation. Held, untenable; that the agreement to supply individuals with water did not destroy the public use, and that the facts justified a finding that said rights were necessary for the purposes of plaintiff's incorporation; that is, to meet the requirements, under all contingencies, of the villages dependent upon it for their water supply. Id.

The judgment below restrained defendants from constructing and maintaining any reservoir and dam upon the P, river, or from intercepting or diverting any of its waters, or from acquiring any riparian rights therein. Held, error, and judgment modified so as only to restrain defendants from erecting any reservoir or dam above the point where plaintiff had located its new reservoir. Id

1.

Plaintiff, a water-works company, organized under the act providing for the incorporation of such companies (Chap. 737, Laws of 1873, at amended by chap. 415, Laws of 1876), located and constructed a dam and reservoir upon the P. river, and in May, 1886, filed a map showing the location and the lands necessary to be taken, and entered into contracts with several villages to supply them with water. It had, prior to May, 1888, acquired the lands occupied by it, and the

right to divert the water of the stream from the riparian owners below the dam, except one H., and had commenced proceedings to acquire his rights. On April 9, 1888, the company adopted a map and plans for two additional reservoirs, which were not contemplated at the time of filing the original map, one to be located on lands acquired by it below the land of H., which map was filed May 7, 1888. It had also acquired the rights from the riparian owners below H. to divert the water at such lower reservoir. Before this, however, but while plaintiff was prosecuting with diligence and in good faith the proceedings to acquire the rights of H., defendants, who composed the board of water commissioners of the village of T., with actual notice of what plaintiff had done, undertook to locate a dam and reservoir upon the lands of H., filed a map thereof and instituted proceedings to condemn for their use the riparian rights of H. In an action to restrain defendants from constructing such dam and reservoir, held, that neither plaintiff's original plan, as shown by the map then filed, nor the rights acquired from the riparian owners below, deprived defendants of the right to locate their works upon the same stream below defendants' works; that the fact that defendants succeeded in filing their map before the plaintiff filed its second map, did not necessarily give defendants the exclusive right to condemn and acquire the lower riparian rights; that plaintiff, before filing that map, had the right to enter upon and acquire the lands and water rights required for the additional reservoir, and that the rights so acquired were not impaired by the filing of defendants' map; nor did that act give to them the right to acquire by condemnation proceedings plaintiff's rights in the stream below; and as their proposed dam and reservoir would interfere with those rights, plaintiff was entitled to the relief sought. P. W. W. Co. v. Bird. 249

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supply them with water. It was claimed on the part of defendants that the rights so acquired were not for, and had not been devoted to, the public use, and were not necessary for the purposes of plaintiff's incorporation. Held, untenable; that the agreement to supply individuals with water did not destroy the public use, and that the facts justified a finding that said rights were necessary for the purposes of plaintiff's incorporation; that is, to meet the requirements, under all contingencies, of the villages dependent upon it for their water supply. Id.

The judgment below restrained defendants from constructing and maintaining any reservoir and dam upon the P. river, or from intercepting and diverting any of its waters, or from acquiring any riparian rights therein. Held, error, and judgment modified so as only to restrain defendants from erecting any reservoir or dam above the point where plaintiff had located its new reservoir. Id.

The objection is not obviated by the creation of a power in the trustees to select a beneficiary, unless the class of persons in whose favor the power may be exercised has been designated by the testator with such certainty that the court can ascertain the object or objects of the power. Id.

5. The English doctrine of cy pres, which upholds gifts for charitable purposes when no beneficiary is named, has no place in the jurisprudence of this state. Id.

6. The rule that where several trusts are created by a will, which are independant of and separable from each other, and each complete in itself, some of which are lawful and others unlawful, the illegal trust may be cut off and the legal ones be permitted to stand, can be applied only in aid and assistance of the manifest intent of the testator and never where it would lead to a result contrary to the purpose of the will, or work injustice among the beneficiaries, or defeat the testator's scheme for the disposal of his property.

Id.

8. While, in the construction of a will, the court must so construe its provisions as to effectuate the general intent of the testator as expressed in the whole instrument, and while for this purpose words and phrases may be transposed and its provisions read in an order different from that in which they appear in the instrument, and provisions may be inserted or left out if necessary, this can only be done in aid of the testator's intent and purpose and not to devise a new scheme or to make a new will. Id.

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a period not exceeding two lives in being," which were named and "to apply the same and the proceeds thereof to the objects and purposes mentioned" in the will. Those objects and purposes were specified in a clause by which said trustees were requested to procure the incorporation of an institution "with capacity to establish and maintain a free library and readingroom in the city of New York, and to promote such scientific and educational purposes" as they should designate. In case such institution was incorporated during the lifetime of the survivor of the two lives specified, the trustees were authorized to convey and apply to its use said residuary estate, so much thereof as they may deem expedient. In case the institution should not be incorporated during the period limited, "or if for any cause or reason said trustees "shall deem it inexpedient" to so convey or apply said residue, "or any part thereof," they were authorized to apply the whole or such portion thereof as was not so applied to such charitable educational purposes" as in their judg ment would render it "most widely substantial and beneficial to mankind." In an action brought to obtain a construction of the will, held (BRADLEY, POTTER and VANN, JJ., dissenting), that the trust so sought to be created was invalid because of indefiniteness and uncertainty in its objects and purposes, and because it substitutes for the will of the testator that of the trustees and makes that controlling in the distribution of the trust fund; that the power conferred upon the trustees was imperative but not valid, because not enforceable at the suit of any beneficiary; that the clauses in question could not be upheld as constituting primarily a separate trust or power in trust for the benefit of the institution, with an alternative ulterior provision to be effectual only in case the executors deemed it inexpedient to apply the residue to the corporation; that there was not a single indivisible

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12. In February, 1807, R. made and published his will by which he devised all his residuary real estate of which he was then or might be seized and possessed of at the time of his death to C. At that time R. was the owner of certain lands in the city of New York, bounded easterly by the high-water mark of the Hudson River; he subsequently petitioned the common council for a grant of land under water in front of his uplands. Such a grant was executed and delivered in November, 1807. R. died in 1809 without republishing his will. In an action of ejectment brought to recover two lots, part of the lands covered by said grant, in which action defendants claimed title under said will, it appeared that in 1794 the board of aldermen of said city passed a resolution to grant the then owner of said uplands the water lots in front thereof. In 1797 the then owner petitioned said board for a grant so that he might build a bulkhead and fill in his water lots; this was referred to a committee,

who reported in favor of a grant, which report was agreed to by the board. It did not appear that any conveyance was executed; but it appeared that the petitioner, prior to 1799, took possession, docked out and filled in the lots and had the use of the property from that time. In 1798 the city presented a petition to the legislature setting forth, among other things, that it had lately directed a permanent street to be laid out at the extremity of its grants "already made and thereafter to be made on said river, and asking authority to compel the proprietors of the lots fronting thereon to make the street. Thereupon an act was passed (Chap. 80, Laws of 1798), authorizing the city to lay out the street at the expense of the adjoining proprietors and requiring the proprietors of the uplands, who had not acquired title to the land under water, to fill up the space between their lots and said street. The act provided that upon their doing this they shall "be respectively entitled to become the owners of the said intervening space of ground in fee simple." The city accepted the act, and, in pursuance thereof, the then owner of the upland adjoing the land conveyed by said grant, filled in the space between his uplands and said street. Held, that these facts disclosed an equitable title in R. at the time of the execution of his will, which passed by the devise.

Id.

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gave all the residue of his estate, after providing for the aforesaid bequests, absolutely and forever" to his wife. "Full power and authority" was given to the said trustees, executor and executrix to sell any or all" of the real estate "as they may deem best." The executors were appointed trustees and guardians of the children during their minority. H. omitted to qualify as executor, and letters testamentary were granted to the widow alone. In an action to foreclose a mortgage on certain real estate of which F. died seized, the widow was made a party, but H. was not. Defendant, who acquired title under the foreclosure sale, contracted to sell the same to plaintiff. In an action to recover back moneys paid and expenditures under the contract, on the ground of defect in defendant's title, held, that no valid trust was created by the will; that the purposes of the testator could be accomplished through a trust power; that the trustees took no title to the real estate, but the same vested in the widow; and, therefore, that H. was nct a necessary party to the foreclosure suit, and defendant acquired a good title under the sale.

Id.

Ex