Archer v. Archer , 84 Hun 297 ( 1895 )

CULLEN, J.

This is an appeal from an order of the special term directing the appellant, an assignee of the purchaser, made under the judgment in this action to complete Ms purchase. The authority of the court over the immediate purchaser is unquestionable. Requa v. Rea, 2 Paige, 341; Cazet. v. Hubbell, 36 N. Y. 677. In Proctor v. Farnam, 5 Paige, 614, it was held that an assignee, by substituting himself for the purchaser, made Mmself a party to the original suit, so far as to entitle him to a determination by the court of his rights, as against those of Ms assignor. We cannot see why his rights and his obligations should not be equal. By substituting himself for the purchaser, he has subjected himself to the jurisdiction óf the court, to the same extent as the purchaser is.

The only objection to the title is the existence of a running stream over the land purchased, which, it is contended, creates an easement in favor of other owners along the stream. This objection is not valid. The purchaser is bound to take notice, of the physical condition of the property. The case is much stronger than that of a Mghway, the existence of which was held to be no breach of the covenants of title. Whitbeck v. Cook, 15 Johns. 483. Strictly speaking, the natural stream is not an easement, but an incident of the property itself, like the right to enjoy the soil. Washb. Easem. § 20. In Scriver v. Smith, 100 N. Y. 479, 3 N. E. 675, Judge Earl writes, of running streams:

“Such rights have some semblance to easements, and no harm or inconvenience can probably come from classifying them as such for some purposes. But they are not in fact real easements. Every easement is supposed to have its origin in grant, or prescription which presupposes a grant; and it is quite absurd to suppose that the owner of the land at the head of a stream has an easement, by grant or prescription, for its flow over all the land of the riparian owners, for many miles, to its mouth. Would any of the usual covenants in a deed be violated because a natural stream of water flowed through the land, and the upper owners therefore had an easement in such land? Clearly not.”

The opinion in Huyck v. Andrews, 113 N. Y. 85, 20 N. E. 581, was written by the same learned judge, and nowise conflicts with the earlier case. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.