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and 120 New York State Reporter Mohawk river, emptying into the Hudson, and it was many years ago appropriated by the authorities of the state as a (anal basin. On each side of said basin there is a strip of land owned by the state, known as the “Blue Line," about 10 feet wide. For a number of years it has been customary for the plaintiff and others to take ice from such basin under permits issued by the canal authorities, and from which the state has received about the sum of $2,500 annually. The harvesting of this ice has grown to be an industry of large proportions, many thousands of dollars being invested in icehouses. The plaintiff has an icehouse erected upon property in the vicinity of the basin. as have several other parties. The defendant is the lessee or owner of property adjoining the Blue Line on both sides of said basin. The plaintiff alleges that it and its predecessors have continuously cultivated the ice field now in controversy, so that the same would be valuable as an ice field, and have remained in undisputed possession thereof for upward of 25 years. Such occupation appears to have been under permits from the canal authorities, by which said field was allotted and apportioned to the plaintiff or its predecessors. In the year 1901 the defendant made an application to the superintendent of public works for permission to cut ice in said basin, but other applicants, who had permits in former years and sought renewals thereof, protested against a permit being granted to the defendant, and a hearing was had before the superintendent by the different parties to such controversy. and the superintendent of public works decided to allot the ice field in said basin in the following proportions: Green Island Ice Company, 42 per cent. : Henry Harp, 21 per cent. ; Lang & McDonald, 20 per cent. ; Daniel Norton, Jr., 17 per cent.—and to issue permits therefor in such proportions. Since such allotment among the several parties so made in the year 1901, the defendant has apparently made no effort to obtain from the state authorities a permit to harvest ice, but has relied upon his claim as first appropriator thereof, and his claim of right as an adjacent and adjoining proprietor, and in the year 1902 he commenced an action against the plaintiff in this action, in which he asked “that he be perpetually enjoined from interfering with or preventing this plaintiff from cutting and harvesting ice from the bed of the said Mohawk river adjacent to and opposite the lands occupied by the said plaintiff." Upon his complaint and affidavit an order to show cause was granted by the county judge of Rensselaer county, why such injunction should not be granted, and enjoining him from so cutting and interfering with said ice until the hearing of such order to show cause. An application was thereafter made to the county judge, who directed that the injunction so granted by him in the order to show cause be in all things vacated and set aside. It does not appear upon this application what became of that action—whether it has been discontinued or whether it is still pending. The plaintiff has obtained a permit for this season from the superintendent of public works to harvest ice upon a certain designated area of said basin, about 108/10 acres in extent, and being, as is alleged, the same field heretofore occupied by it, for which it is to pay to the state the sum of $25 per acre. Plaintiff alleges that it has prepared the ice field by keeping the water and basin free from weeds and grass during the open season, and by cleaning the ice after it was formed, and is about to haul away the ice for domestic use. The defendant has obtained no such permit to harvest ice upon the basin, but claims that he has that right as an adjoining proprietor of land, and claims that he is in fact the first appropriator of the ice within the field described in the permit issued to the plaintiff. He has attempted to exercise his rights by force, and the plaintiff has resisted by force, the result being that the sheriff of the county has had to interfere to preserve the peace.
Frank H. Deal, for plaintiff.
HERRICK, J. The defendant objects to the granting of an injunction in this case because, as he alleges, the plaintiff has an adequate remedy at law; that is, that if the plaintiff is entitled to harvest the field of ice in controversy here, he can obtain compensation in damages from the defendant for any injury that is done to such ice field, or interference with his rights therein by the defendant.
The remedy by injunction is one that is constantly growing and expanding, and they are now granted in cases where formerly the courts would not have thought for a moment of so doing. From time immemorial it has been the rule not to issue an injunction where the party praying for it had an adequate remedy at law; but our ideas of what are adequate remedies are changing, and it is gradually coming to be understood that a system of law which will not prevent the doing of a wrong, but only affords redress after the wrong is comunitted, is not a complete system, and is inadequate for the present needs of society, and, that where the rights of the parties are clear, the courts should interfere to prevent a violation of such rights—should prevent the doing of the wrong in the beginning, instead of allowing such rights to be violated, such wrongs to be done, and remit the party injured to an action for damages as compensation for such wrongs and injuries, at best an uncertain remedy. Neither will it compel parties, whose rights are clear, to rely upon the peace officers of the state to protect them in their enjoyment, nor compel them to resort to physical force to protect themselves or their property from wrong or injury. There is a preventive as well as a remedial justice.
In the case now under consideration, I think the rights of the parties are perfectly clear. At the last season for harvesting ice the subject was a matter of litigation between the parties. This season the field has been the scene of force and violence, the sheriff of the county having been compelled to interfere to preserve the peace. All these matters combined make it a proper case for the granting of an injunction to prevent unlawful interference with the plaintiff's rights, injury to its property, repeated litigation, and the resort to physical force to protect its rights and property. In the view that I have taken of this controversy, and the rights of the respective parties, the various decisions in this and other states upon the ownership of ice shed very little light upon the questions here involved. In this case neither of the parties to the action has any right to the ice formed in the canal by virtue of being an adjoining proprietor; they have no riparian rights; they cannot reach the waters of the canal except by going over the strip of land, the fee of which belongs to the state; the only rights they have therein are such as belong to any person in the state, except as permission may be given to them by the public authorities, If the ice belongs to the owner of the fee where it is formed, then the ice in question here belongs to the state. "Lands appropriated by the canal authorities for the use of the canals under the statute are held by the state in fee.” Heacock v. State, 105 N. Y. 248, 11 N. E. 638; Sweet v. City of Syracuse, 129 N. Y. 316, 334, 27 N. E. 1084.
It seems to me that the control that the state has over the canals and their waters is different from that which it exercises over the navigable waters of the state. The one it exercises by right of sovereignty, and "among other rights which pertain to sovereignty is that of using, regulating, and controlling for special purposes the waters of all navigable rivers or streams, whether fresh or salt, and without regard to the ownership of the soil beneath the water.” Smith v. City of and 120 New York State Reporter Rochester, 92 N. Y. 463-477, 44 Am. Rep. 393. In the case of its canals, as we have seen, it owns the fee of the land beneath the waters and the strip of land on each side; it owns it as it owns its public buildings; and while that ownership is for the benefit of the people, and one in which the people have an interest, that interest is a collective, not a several, interest-not an interest which permits any one of the people by right of first appropriation to take a portion thereof, and reduce it to private ownership. For a great number of years, however, it has been customary for the canal authorities to grant permission to people to take ice from the canals under restrictions and regulations prescribed by such canal authorities. Under such permits the harvesting of ice has grown to be a great industry, icehouses have been erected at various points along both the Erie and Champlain canals, and hundreds of thousands of dollars have been invested in ice-harvesting plants. Of the authority of the state to grant these permits I have no doubt. By section 23, c. 338, pp. 621, 623, of the Laws of 1894, it is provided that:
"The superintendent of public works shall: (1) Have the general care and superintendence of the canals.
(13) Permit in his discretion, any person residing in the vicinity of any of the canals to cut, gather and haul away, for the domestic use of such person, ice from such canals whenever the same can be done without causing damage to the banks or other structures thereof."
It must be apparent that to permit any and every one to take ice from the canals at his pleasure might result in serious damage to their banks and even to the prisms, and that for the purpose of guarding and protecting the canals the superintendent of public works may exclude any one therefrom, or he may permit any one, under proper regulations, to go upon them. The permission to one, defining the limits within which he may go, is necessarily an exclusion of all others from those limits. So, also, I have no doubt of the right of the state to dispose of the ice formed in its canals. Whatever may be said of the ownership of flowing water, I believe it is almost universally conceded that, when water becomes fixed by freezing, the ice belongs to the owner of the fee of the land over which it is formed. Here, as we have seen, the state is the owner of the fee, not only of the bed of the canal, but of the land on each side. As owner of the ice, it may dispose of it. It is not bound to let it go to waste; neither should it permit a general scramble for its appropriation. In this case the plaintiff has received permission from the superintendent of public works to harvest the field defined in his written permit. The defendant has received no such permit; he has no right in the basin at all; he has no right to interfere with the plaintiff in the enjoyment of the privilege granted to him by the permit, and for which he has paid the public authorities.
Let an injunction issue as asked for. Injunction issued.
(42 Misc. Rep. 306.)
MARSHALL V. UNITED STATES TRUST CO. OF NEW YORK et al.
(Supreme Court, Special Term, New York County. December, 1903.) 1. TRUST ESTATE-RIGHTS OF JUDGMENT CREDITOR.
A mother conveyed a life estate in mortgaged property on A. avenue to her son, and gave him by will the income of all her residuary estate, and directed that her trustees should pay the mortgage out of the sale of her property on M. avenue. The son leased the property on A. avenue, and entered into partnership with the lessee, making the lease a partnership asset. Judgments were recovered against the partnership, and the trustees, with knowledge of these facts, and at the request of the son, failed to pay the mortgage on the A. avenue property after sale of the property on M. avenue, and allowed the mortgaged property to be sold, and bought it in with money consisting in part of the proceeds of the M. avenue property, and sold the property on A. avenue, and paid the income to the son. Held, that an assignee of a judgment creditor of the firm had a lien on so much of the fund as was represented by that part of the proceeds of the sale of the property on M. avenue as the will had directed to be used in payment of the mortgage on the property on A. avenue.
Action by Charles Cyrus Marshall against the United States Trust Company of New York and others. Judgment for plaintiff.
J. M. Harrington, for plaintiff.
SCOTT, J. This is an action by a judgment creditor of one William C. Flanagan to compel payment of the judgment out of the income of a fund held by the defendant trustees. On October 28, 1897, the plaintiff's assignor recovered a judgment against Flanagan and another, which remains unpaid, and upon which execution has been duly issued and returned unsatisfied. On November 10, 1896, Mary
. A. Flanagan, the mother of William C. Flanagan, conveyed to him a life estate in certain property at the corner of Avenue B and Fourteenth street, in the city of New York. The property then was, and continued to be until the death of Mrs. Flanagan, subject to a mortgage for $12,000, held by one Kinken. Mary A. Flanagan died on December 15, 1896, leaving a will executed on March 19, 1895, prior to the grant of the life estate to her son, and a codicil thereto executed on November 20, 1896, 10 days after the grant of the life estate. The defendants United States Trust Company and James J. Williams were appointed executors. By her will, after numerous bequests and annuities, the testatrix directed her executors to pay over all the net income of all her property to her son during his life. By her codicil she directed her executors to pay out of the moneys realized upon the sale of certain property on Mott avenue, which she directed to be sold, “any mortgage upon the premises situate on the southwest corner of Avenue B and Fourteenth street [being the property in which she had given her son a life interest], whether the same be owned by me at the time of my death or shall have been transferred to my said son, but not otherwise." In January, 1898, the defendant executors sold the Mott avenue lots for a sum far in excess of the amount of the mortgage upon the Avenue B property. In the meantime, and on April 14, 1897, William C. Flanagan had leased the Aveand 120 New York State Reporter nue B property to one Francis Mullen for a term of 10 years, from May 1, 1897, and on April 29, 1897, had formed a copartnership with said Mullen to carry on business on said premises. By the terms of the copartnership agreement, it was provided that said lease should become partnership assets, and become merged in them. The copartnership was unsuccessful, and failed before the foreclosure hereafter mentioned. The plaintiff's judgment is against both Flanagan and Mullen. Other judgments were also obtained by other persons against Flanagan and Mullen. While his affairs were in this condition, Flanagan, through his attorney, requested the defendant trustees not to pay the mortgage on the Avenue B property, but to permit the same to be foreclosed; and this the defendant trustees, with full knowledge of the judgments against Flanagan, the lease, and the copartnership agreement, consented to. The mortgage was accordingly foreclosed. and the property bought in by the defendant trustees with the funds of the estate for $18,300. The expenses of the sale amounted to $558.66. There were due arrears of interest amounting to $1,006.93, and taxes amounting to $571.80. A surplus was realized amounting to $4,162.61. Surplus proceedings were had, to which plaintiff's assignor was made a party, but he did not prove his claim. Other judgment creditors of Flanagan did prove their claims, and an order was made providing for the satisfaction of their claims out of the income of the surplus. Thereafter, upon Flanagan's application, a gross sum was set apart to himn in lieu of his interest in the surplus, and the amount so set apart was applied to the satisfaction of the claims proved in the surplus money proceedings. The property was bought in by the executors in August, 1898, and in the following February, with the consent of William C. Flanagan, they sold it for $21,000, which they now hold.
The plaintiff seeks to follow this fund, and compel the application of the income thereof to the payment of his judgment. He has not joined any other creditor, and is not bound to do so. The commencement of the action gives him a preferential lien upon the equitable assets which he now seeks to reach, and which can be reached only by an acti in the nature of a creditors' bill. Corning v. White, 2 Paige, 567; Edmeston v. Lyde, i Paige, 637; Mandeville v. Campbell, 45 App. Div. 512, 61 N. Y. Supp. 443; First Nat. Bank v. Shuler, 153 N. Y. 163, 47 N. E. 262, 60 Am. St. Rep. 601. The facts shown upon the trial leave no doubt that the refusal to pay the mortgage, its foreclosure, and purchase by the trustees, were all parts of a scheme devised by Flanagan, and acquiesced in by the trustees, to prevent his creditors from reaching the estate which his mother's deed and will had created for him, and to so divert the money necessary to pay off the mortgage that he could enjoy the income therefrom without interference from his creditors. His life estate in the Avenue B property was subject to the payment of his debts, and, if the property had been freed from the mortgage, as the mother intended that it should be, the life estate would have been enhanced in value, and the fund for the satisfaction of his creditors correspondingly increased. But with the mortgage left unpaid and foreclosed, the life estate was gone, and the money which should have been ap