Wilklow v. Lane
New York Supreme Court
MOTION for a new trial, upon exceptions, in a cause tried before Justice Gould, at the Ulster circuit in May, 1861, when the judge ordered a verdict for the defendant. The action was brought against the defendant to recover of the defendant the possession of certain land covered by a mill pond. On the 21st day of April, 1821, John.W.
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MOTION for a new trial, upon exceptions, in a cause tried before Justice Gould, at the Ulster circuit in May, 1861, when the judge ordered a verdict for the defendant. The action was brought against the defendant to recover of the defendant the possession of certain land covered by a mill pond. On the 21st day of April, 1821, John.W. Carpenter and wife conveyed to Eliphalet Smith, by a full covenant warranty deed, a farm described as containing 135 acres, and including within its boundaries the premises in question. Afterwards, and on the 30th of April, 1836, Eliphalet Smith and wife, by…
1Opinion of the Court
By the Court,
Hogeboom, J.
I. It is doubtful whether the premises described were ever in the defendant’s possession, in such an exclusive sense as made him liable to an *247action of ejectment. He claimed and enjoyed only an easement—a right to flow the land. Subject to this easement, the plaintiff had undisputed control and dominion over it, and might have occupied it as he desired. In such a case ejectment will not lie, and the judge might properly direct a verdict for the defendant. (Redfield v. The Utica and Syracuse Rail Road Co., 25 Barb. 54.)
II. The pond was appurtenant to the defendant’s…
2Cases cited13 opinions
- Bank of Utica v. MersereauNew York Court of Chancery · 1848
- Livingston v. Peru Iron Co.Court for the Trial of Impeachments and Correction of Errors · 1832
- Bradstreet v. ClarkeNew York Supreme Court · 1834
- Moseley v. . MoseleyNew York Court of Appeals · 1857
- Averill v. WilsonNew York Supreme Court · 1848
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3Cited by9 opinions
- Bedell v. . ShawNew York Court of Appeals · 1874
- City of La Crosse v. CameronCourt of Appeals for the Seventh Circuit · 1897
- Bedell v. ShawNew York Court of Appeals · 1874
- Farley v. HowardNew York Supreme Court · 1900
- Henneky v. StarkNew York Supreme Court · 1911
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