Rathbone v. . McConnell
New York Court of Appeals
Appeal from the Supreme Court. Action for diverting' a water-courge. The pleacfings are sufficiently stated in the following opinions. There was a trial, and a verdict for .the plaintiff for $25. The clerk, upon the adjustment of costs, did not allow them to the' plaintiff, but allowed costs to the defendants. This decision was reversed at special term, but, on appeal, this judgment was reversed at general term in the seventh district, and costs awarded to the .defendants.
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Appeal from the Supreme Court. Action for diverting' a water-courge. The pleacfings are sufficiently stated in the following opinions. There was a trial, and a verdict for .the plaintiff for $25. The clerk, upon the adjustment of costs, did not allow them to the' plaintiff, but allowed costs to the defendants. This decision was reversed at special term, but, on appeal, this judgment was reversed at general term in the seventh district, and costs awarded to the .defendants. The plaintiff appealed to this court.
1DissentBacon, J.
(Dissenting.) The only question presented by this case is, whether the plaintiff is entitled to costs against the defendants, and that depends upon the question whether a claim of title to real property arises upon the pleadings. The complaint was for injury to the plaintiff by reason of the permanent diversion • of a stream of water from the lands of the plaintiff where it had been accustomed to run, by means of a trench and channel dug by the defendants above the premises. The plaintiff averred that he was “ the owner, and in possession, of the premises, with the appurtenances,” from which…
2Cases cited4 opinions
- Mumford v. WhitneyNew York Supreme Court · 1836
- Davis v. TownsendNew York Supreme Court · 1851
- Powell v. RustNew York Supreme Court · 1850
- Niles v. LindsleyThe Superior Court of New York City · 1852