Burbank v. Fay
New York Supreme Court
Appeal from order dissolving injunction. The action was brought for the purpose of enjoining the defendants from closing a certain basin, known as Child’s basin, situated in the city of Buffalo, and communicating with the waters of the Erie canah The plaintiffs were proprietors of mill seat lots, situated upon the basin, and alleged, among other things, that for more than forty years the basin had been used in common by the proprietors of lots adjacent thereto, under claim…
Read the full summary
Appeal from order dissolving injunction. The action was brought for the purpose of enjoining the defendants from closing a certain basin, known as Child’s basin, situated in the city of Buffalo, and communicating with the waters of the Erie canah The plaintiffs were proprietors of mill seat lots, situated upon the basin, and alleged, among other things, that for more than forty years the basin had been used in common by the proprietors of lots adjacent thereto, under claim of right, without payment of rent or profits, and that the same had been a common way for all the proprietors of mill…
1Opinion of the Court
By the Court
Johnson, J.
Whether the plaintiffs were entitled to have and to retain their injunction, depends upon the question whether they have the right, as against the State, to have their basin connected with the Erie canal by an open and unobstructed passage from one to the other, and supplied with water from the waters of the canal. This right must be shown by the complaint, as the injunction was granted on the complaint alone.
The plaintiffs allege in their complaint, on information and belief, that they have such right by grant and prescription, which cannot be taken away without…
2Cited by2 opinions
- Kingsland v. Mayor of New YorkNew York Supreme Court · 1887
- Mattoon v. MunroeNew York Supreme Court · 1880