and 136 New York State Reporter

basis for taking it; and when it provides that the court may add other property, and that the commissioner may change the maps "for the more efficient carrying out of the provisions of this act," it has reference to the carrying out of changes made by the board of estimate and apportionment subsequent to its first adoption of maps. The filing of such maps divests the owners of title and vests it in the city. The system does not contemplate that lands of which the title thus stands transferred shall not be taken, nor that lands the title of which has not thus been transferred shall be taken. In a word, it is for the board of estimate and apportionment to determine what lands shall be taken, and its action cannot be overruled or changed by either the commissioner or the court. It is for it alone to make changes.

The order should be reversed and the report sent back to the commissioners to make their report accordingly.

Order reversed, with $10 costs and disbursements, and matter remitted to the commissioners for further consideration in accordance with the above opinion. All concur.

(116 App. Div. 699)

PRIME et al. v. CITY OF YONKERS.

(Supreme Court, Appellate Division, Second Department. January 11, 1907.) 1. MUNICIPAL CORPORATIONS-TORTS-AGENTS.

The board of health of the city of Yonkers, created by Laws 1881, p. 265, c. 184, tit. 9, § 1, and consisting of the mayor, supervisor, president of the common council, president of the board of water commissioners, pres ident of the board of police, and the health officer, was not the agent or servant of the city, and it was not liable for any negligence on the part of such board.

[Ed. Note. For cases in point, see Cent. Dig vol. 36, Municipal Corporations, §§ 1566, 1575.]

2. SAME-OBSTRUCTIONS IN WATER COURSES.

Where a city placed a structure in a natural stream, so that it changed the flow of the waters from their natural channel, and thereafter the board of health, which was not the agent of the city and for whose negligence the city was not responsible, removed certain dams, whereby the current was greatly increased, and such increased current was so deflected by the structure in the stream as to wash away the foundations of plaintiffs' buildings, the city was liable.

[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1784.]

Appeal from Special Term, Kings County..

Action by Ralph E. Prime and another against the city of Yonkers. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. Argued before WOODWARD, JENKS, HOOKER, RICH, and GAYNOR, JJ.

John F. Brennan, for appellant.

Henry Bacon (Ralph Earl Prime, Jr., on the brief), for respondents.

WOODWARD, J. There is no substantial dispute as to the material facts in this case. The plaintiffs, some time prior to the year

1890, purchased two lots known as Nos. 25 and 27 Warburton avenue, in the city of Yonkers, and in that year constructed a brick and frame building upon the southerly half of their premises; such premises being located upon the banks of the Nepperhan river, a stream running through the city. This stream is nonnavigable. For a period of 40 years prior to the purchase of the premises by the plaintiffs the Nepperhan river had been utilized as a water power; one dam being located below the plaintiffs' premises and five above the same. In the year 1860 the then village of Yonkers laid out and opened Warburton avenue as a public highway in front of the premises now owned by the plaintiffs, and across one of these millponds; thus dividing the pond into two sections. The waters from the easterly portion were conducted under the new street by two openings; the northerly one being slightly above the plaintiffs' premises. In 1878 the defendant closed the southerly opening, and enlarged and reconstructed the northerly It appears from the evidence that in making this change the defendant left certain walls or abutments in the bed of the pond in such a manner as not to interfere with the free flow of the waters through the pond as it then existed, but which, under the facts hereafter to be mentioned, operated to work damage to the p'aintiffs, and this negligent act on the part of the defendant appears to be the substantial cause of complaint on the part of the plaintiffs.

one.

This was the situation at the time plaintiffs constructed their building upon the bank of the stream in 1890. They were located upon this river, the outlet to the pond being just above their premises, with no apparent obstruction to the flow of the water, or anything apparently intended to change the course of the stream in flowing past the premises of the plaintiffs. In the year 1893 the board of health of the city of Yonkers, and which is alleged to have been the agent of the defendant, tore down and destroyed all of the dams in the Nepperhan river in the city of Yonkers, both above and below the plaintiffs' premises. The complaint alleges that this work was negligently done on the part of the defendant, no precautions being taken to protect the buildings of the plaintiff's upon the banks of the stream, and that as a result of the removal of these dams the Nepperhan river was changed from a sluggish or impounded stream to a rapidly moving torrent, especially at high water, and that by reason of the change in the force of the current the stream has cut down below the old level of the pond from seven to ten feet, and that this has exposed the original wall left there by the defendant in 1878, resulting in a radical change in the direction of the flow of the waters, throwing them directly against the foundations of the plaintiffs' buildings and undermining them to such an extent as to require many thousands of dollars expenditure in protecting the property. The defendant, subsequent to the commencement of this action, removed the old wall, and the court refused the injunctive aid asked for by the plaintiffs, but gave a judgment for the amount of the damages sustained by the plaintiffs. The defendant appeals.

It is further urged by the plaintiffs in their complaint that the defendant, after the destruction of these dams, laid out, opened, paved,

and 136 New York State Reporter

and guttered streets within and without the drainage area of the Nepperhan river in the city of Yonkers, in such a way as to rapidly accumulate and discharge the rainfall into the said stream, thus increasing the danger to the property of riparian owners; but, in the view we take of this case, it is not necessary to determine whether the defendant was within its rights in this regard or not. By the provisions of title 9, § 1, c. 184, p. 265, of the Laws of 1881, the mayor, the supervisor, the president of the common council, the president of the board of water commissioners, the president of the board of police, and the health officer were constituted a board of health for the city of Yonkers, and this body, in no way answerable to the common council or to the city in its corporate capacity for its acts, appears to have acted under the provisions of section 2 of the above title in tearing out the dams in the Nepperhan river. We are quite clear that under the rule laid down in Bamber v. City of Rochester, 26 Hun, 587, 589, and approved (97 N. Y. 625), the board of health of the city of Yonkers is not the agent or servant of the defendant, and that for any act of negligence on the part of the said board of health the city of Yonkers is not liable. We are none the less persuaded that the plaintiff has a right to recover the damages which he has suffered.

It will be assumed that the defendant is not liable to the plaintiffs by reason of anything done in laying out Warburton avenue in 1860, or in the construction of the bridge or causeway over the millpond in the conditions then prevailing; for it is not pretended that any damages resulted to the premises until some years after the plaintiffs had constructed their building in 1890. But it does appear that in constructing this bridge or causeway in 1860 the defendant constructed a wall diagonally across the channel of the stream in its natural course, and that, when the work of reconstructing this bridge was undertaken in 1878, this wall was cut down to about the level of the millpond as it then stood, and was left there by the defendant. This did not constitute actionable negligence, in so far as the plaintiffs are concerned, or their predecessors in title, for no damages resulted. The impounded waters, with an adequate outlet for the flow of the streami above the capacity of the dam, were not affected by the old wall, for the waters flowed over it in a sluggish way, and did not follow the original channel. When, however, the board of public health, composed of the leading public officials of the city, abolished the dams in the river and caused the water to flow in the natural channel, it became the duty of the city of Yonkers to remove any structure which it may have placed in the stream which operated to change the flow of the waters from their natural channel, to the damage of these plaintiffs. The city of Yonkers would clearly have had no right to construct the wall after the dams were removed in such a manner as to change the natural flow of the stream to the damage of the plaintiffs, and it could have no higher right to maintain the same under the conditions existing in the absence of a prescriptive right, which it could not have gained by reason of the existence of the wall under the old conditions. The defendant appears to have recognized this fact, for it has, since the commencement of this action, removed the

obstruction, and the court has refused to the plaintiffs the injunctive relief because of this change in the situation, yet the defendant is here urging that it is not liable for the damages which the plaintiffs have suffered through its wrong. We cannot agree with that contention. The defendant gained all of its rights in respect to Warburton avenue and its bridges across the millponds while the Nepperhan river at this point was used for private purposes. While its milldams constituted private property, and when the time came that these milldams became a public nuisance, and the dams were removed by public authority for the purpose of restoring the stream to its normal flow, it became the duty of the city of Yonkers to adjust itself to this changed condition, and not to permit its former structures, for which it is not urged there was any reason or necessity after the year 1878, to work damages to those lawfully occupying premises upon the banks of this stream. The evidence shows that by the removal of the dams the stream became rapid in its flow, that it cut down below the former bed of the millponds some seven to ten feet, and that the old wall maintained by the city of Yonkers, for no other apparent purpose than to save the expense of removing the same, operated to throw the waters of this stream, augmented to some extent by the flow of gutter waters into the river, against the foundations of the plaintiffs' buildings, thus doing the damage for which a judgment has been entered in this action. We are of opinion that under these facts the judgment is right, and should be sustained.

The judgment appealed from should be affirmed, with costs.

concur.

(116 App. Div. 775)

SCHAEFER v. THOMPSON.

(Supreme Court, Appellate Division, Second Department. January 11, 1907.) EASEMENTS CONVEYANCE.

Under 1 Rev. St. (1st Ed.) pt. 2, c. 1, p. 478, tit. 5, § 1, providing that words of inheritance shall not be requisite to create or convey an estate in fee. where one conveyed a portion of his land and reserved an easement of a right of way without words of inheritance, it was not personal to the grantor, but passed to his grantee on a conveyance of the remainder of the land.

Appeal from Special Term, Suffolk County.

Action by Mary Schaefer against Cornelia J. Thompson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Hommel being the owner of a lot 50 feet front on Main street, Northport. conveyed (with his wife) the westerly part, 30 feet front, to Schaefer, and later the latter conveyed the same to his wife, the plaintiff. The deed of Hommel contained the following clause:

"Subject however to the right of said parties of the first part hereby reserved to them, their heirs and assigns to project cornices two feet over and above the easterly line of said premises-and the said parties of the first part also reserve a right of way for wagons and foot travel seven feet in width along the easterly line of said described premises."

Hommel afterwards conveyed the remainder of his lot. 20 feet front, and the defendant succeeded to that title. The deed conveyed by metes and bounds, "with the appurtenances."

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This is an action brought under sections 1638, et seq., of the Code of Civil Procedure to compel the determination of title to real property, the complaint being that the defendant unjustly claims an easement in the plaintiff's lot, i. e., the easement of right of way in the said clause of Hommel's deed set out above.

Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, MILLER, and GAYNOR, JJ.

David B. Cahn (Timothy M. Griffing, on the brief), for appellant.

GAYNOR, J. The plaintiff claims that the reservation clause in the deed in respect of the right of way was personal to the grantor, and therefore ceased when he conveyed his land afterwards. It being plain and unambigous, facts dehors may not be resorted to for its interpretation. It is not affected by the absence of the word "heirs" or other words of inheritance. A reservation by the grantor in a deedpoll is deemed a grant by the grantee to him, and operates as such. 3 Wash. on Real Prop. (5th Ed.) pp. 461-2, 470-3; Reeves on Real Prop. p. 166; Claflin v. B. & A. R. Co., 157 Mass. 489, 32 N. E. 659, 20 L. R. A. 638; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 321. It was therefore necessary at common law for a reservation to be to the grantor and his heirs in order to make it perpetual instead of personal to him, that being the rule in respect of all grants in order to convey more than a life estate. But that rule was abrogated by statute in this state, and with us a grant without terms of inheritance conveys an estate of inheritance. 1 Rev. St. (1st Ed.) pt. 2, c. 1, p. 748, tit. 5, § 1.

The judgment should be affirmed.
Judgment affirmed, with costs.

HIRSCHBERG, P. J., and WOODWARD and MILLER, JJ., concur; HIRSCHBERG, P. J., and MILLER, J., being also of the opinion that the language of the reservation permits, if it does not require, the construction that the reservation of the right of way is to the grantor's heirs and assigns, as well as the reservation of the right to project cornices. RICH, J., concurs in result.

(117 App. Div. 215)

COHN-BAER-MYERS & ARONSON CO. v. REALTY TRANSFER CO. et al. (Supreme Court, Appellate Division, First Department. January 11, 1907.)

1. PLEADING-COMPLAINT-THEORY OF ACTION-ALTERNATIVE RELIEF.

To maintain an action in equity on the theory of alternative relief, such relief must be asked against the same defendant or defendants, and not against one defendant if one state of facts be found, and against the other if another state of facts be found.

2. DISMISSAL AND NONSUIT--MISJOINDER OF PARTIES.

A complaint stating a cause of action against one defendant will not be dismissed as to him because stating no cause of action against the other defendants.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 17, Dismissal and Nonsuit, § 95.]