Citation Numbers: 89 N.Y.S. 119
Judges: Williams
Filed Date: 7/6/1904
Status: Precedential
Modified Date: 9/9/2022
The judgments should both be affirmed, with costs.
Williamson brought his action to restrain McCollum from interfering with the supply of water to an ice pond, and to determine the manner of cleaning out the pond. McCollum brought his action to restrain Williamson from cleaning out the pond, and depositing materials upon the icehouse property or elsewhere, without his consent, and for damages.
December 22, 1892, the parties entered into an agreement in writing whereby, for $3,000, McCollum agreed to sell to Williamson his ice business, and the personal property used in the business, and a tract of land, and to give a lease of the icehouse and the land ad
Substantially, the only defense interposed to the granting of this relief is that the matter is res adjudicata between these parties by reason of the determination of two former actions between them about 1894 or 1895. In the action of Williamson against McCollum then brought, there were two causes of action alleged: First, the one here complained of—the interference with the supply of water through the ditch; second, interference with the gate at the outlet of the pond, thereby drawing out the water when ice was forming. And it was sought to restrain both of these alleged trespasses. The court found that the acts complained of, if done at all by McCollum, were done to protect his property surrounding the pond from being injured by the overflow of waters therefrom, and from setting back of the water in the ditch into the pond, so that the water coming
In the other action, by 'McCollum against Williamson, decided at the same time, it was sought to restrain Williamson from in any way interfering with the gate, or with the flow of water through the same; and the court by the judgment therein restrained Williamson from maintaining the gate to a point at which in times of flood the waters of the pond would rise, so that the same would flow or set back upon the lands of McCollum and cause the same to be submerged, and adjudged that when the lands were so submerged, or seriously threatened therewith, McCollum should have the right to lower the gate to protect his property from such injury, and Williamson should not interfere with such right.
There was nothing in the determination of those actions that prevents the granting of the relief here, restraining McCollum from interfering with the water supply to the pond through the ditch in question.. There is no claim now that Williamson has the right to maintain the gate so as to flood McCollum’s premises. No relief is here asked as to the maintenance of the gate. That question was settled by the former litigation referred to. The other issue between the parties in the present actions relates to the subject of the cleaning of the pond. It is of no value for the purpose of harvesting ice unless cleaned out yearly, or nearly so. McCollum cleaned it out while he used it for getting ice. Williamson must do the same. This proposition seems not to be controverted. The sale and leasing of the property involved the right to clean the pond. McCollum used wheelbarrows, and put the materials near the edge of the pond. The judgment provides for the same manner of cleaning by Williamson; McCollum to designate the places at each end of the pond where the materials shall be deposited, or, at McCollum’s option, the materials shall be deposited at any other place he may designate on his premises, by the use of wagons, and, in default of any designation being made, Williamson may remove the same from the premises. This is a fair and just provision, which cannot well be objected to by McCollum.
The views herein expressed lead to the affirmance of both the judgments appealed from, with costs. All concur.