Fitzhugh v. Raymond
New York Supreme Court
THE plaintiffs’ testator, Allen Ayrault, deceased, was the owner of a certain farm, in the county of Livingston, and the defendant is in occupation of another, owned hy one Moss, who holds the fee thereof, subject to the right of the testator, to convey water from said farm occupied by the defendant.
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THE plaintiffs’ testator, Allen Ayrault, deceased, was the owner of a certain farm, in the county of Livingston, and the defendant is in occupation of another, owned hy one Moss, who holds the fee thereof, subject to the right of the testator, to convey water from said farm occupied by the defendant. The plaintiffs’ testator claimed the right to enter upon the . latter farm, to convey such a quantity of water in an “ aqueduct under ground as should be necessary or reasonable to be used by him from any reservoir or spring found thereon.” In the exercise of this alleged right, he dug a ditch…
1Opinion of the Court
By the Court, Johnson, J.
By the terms of the grant, the plaintiffs’ testator had “the right of conveying such quantity of water in an aqueduct under ground as shall be reasonable to be used ” by him, “ from any reservoir or spring of water now or hereafter found,” on the lot occupied by the defendant; “ provided that the quantity of water so used shall not exceed the equal half part of the whole volume of water supplied by such reservoir or spring.”
The question in this case is whether the testator, after constructing an aqueduct through the defendant’s lands, from a reservoir thereon, and…
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