Monell v. Colden , 13 Johns. 395 ( 1816 )

Thompson^ Ch, J,,

delivered the‘opinion of the court. The declaration in this case contains six counts, varying in some-' small, and mostly immaterial, circumstances, the plaintiffs5' cause of action. To this declaration there is a general demurrer, which admits the facts therein stated. If, therefore, any of the counts. se!: forth facts sufficient to make out a cause of action, the plaintiffs are entitled to judgment. Without noticing each count separately, it will be sufficient to state, generally, that the facts alleged are, substantially, that, a conversation was had between the parties relative to., the purchase, by the plaintiffs, of the defendant, of a certain piece of land at New burgh, adjoining the Hudson, river, upon which, conversation, the defendant, for the purpose of inducing the plaintiffs to purchase the same, and to enhance the value thereof, fraudulently represented, that he was the owner of land, and, as such,.had, by the laws pf the state, the. privilege gf having a grant or patent for the land- under the water, adjoining to the land so-to bo sold; add that, if the plaintiffs would purchase the land, he would aid and assist them in obtaining a grant for the land under the water. The-declaration states t-hat, upon-such conversation, an agreement for the purchase was made, for the .land, described by metes and bounds, and all the privileges' and-appurtenances to the same belonging. It is t-hemaverred that, many years .before,, á patent for the land under, the water had been granted to one Alexander C olden, and was then vested in one Cadwallader’ R. Coldén, and was not in the people of this state; or in; the defendant, and that all this-was well known-to the defendant. It is also, averred, that the principal inducement with the plaintiffs to purchase the land, was to obtain the water privilege, for the purpose of l erecting-storehouses and’docks, andfhat the value of the land, without this privilege, was very greatly diminished; and that the plaintiffs had, pursuant to the directions of the act for that purpose, made application to the commissioners of the land Office, for a grant of the land under the water, opposite to the land so sold, and were refused the same by reason of the previous grant to Alexander Colden.

These facts being admitted by the demurrer, aSvtrue, I cannot see why they do not show a good causé of action. They. show a most palpable fraud practised upon the plaintiffs, in the sale of the land, and by which fraud they have been essentially and materially injured. If no representation had been made on the subject, by the defendant, both parties would have been equally chargeable with a knowledge of the law, and the publie -records of the state. But, according to the declaration, the defendant, knowingly and falsely, misrepresented the fact, with respect to the-situation of the land under the water, and, if so, he is chargeable with all the damages resulting from such false representation. That a deed hasbéen given, cannot affect the plaintiffs’claim for the fraud. The false representation was not respecting any thing to be included in the deed, but with respect to a privilege which the plaintiffs were to acquire, in consequence of owning the land on the shore adjoining the river. The law, which is a public statute, prohibits the granting a patent for land under the water, except to the owner of the land on the shore adjoining thereto. And it is a fact of public notoriety, that .such grants are made almost as matter of course, and without any consideration, except- the mere patent fees. One count in the declaration contains an averment that the land, without this privilege, would not be worth more than 500 dollars, but that, with'the privilege, it would be worth 30,000. The declaration gives a rule of damages as certain as any declaration in such case, founded upon fraud, can give.. It states the facts, and the damages arising therefrom are matter of inquiry upon the trial. What is the value of the privilege of which the plaintiffs are deprived, may be matter of uncertainty; but the value of the land sold, independent of this privilege, may be easily ascertained, and the difference between that, and the price paid, ought, at all events, to be refunded. But the extent of the damages, or the rule by which they are to be ascertained, are not now subjects of inquiry. If the action can be sustained under such a state of facts, that is sufficient for the present; and, in my judgment, it can be maintained. The facts, as stated, clearly show, that by the false and fraudulent misrepresentations of the defendant, the plaintiffs haye been deceived, and materially injured. (6 Johns. Rep. 182. 13 Johns. Rep. 226. 4 Taunt. 786.) I am; accordingly,, óf opinion, that thó plaintiffs aré entitled' to judgment.. -< ’ ~. " r ..... • .*

'Judgment forffhé plaintiffs»,.'.