Troup v. Hurlbut

By the Court, Monson, J. This action was commenced on the 31st of January, 1849, to recover damages for overflowing the plaintiff’s land, by reason of the defendant’s mill-dam, and was brought to trial before Mr. Justice Johnson and a jury, at the Broome circuit, on the 12th December, 1849, when a verdict was rendered for the defendant. On the trial the defendant offered in evidence, a deed from William Rogers to John Dusenbury, dated 16th October, 1817; also a deed from Rogers to Crocker, dated 18th July, 1817, and a deed from Coryell to Crocker, dated 12th of April, 1815. To which the counsel for the plaintiff objected, on the grounds that they had not been acknowledged, or proved, or recorded; and were void as against, the plaintiff who claimed to be a bona fide purchaser without notice. But the court overruled the objections and admitted the deeds in evidence. Dusenbury went into possession under his deed, and the defendant offered to show that the property described in said deeds had been held agreeably to them, from their dates to the commencement of this suit. The general doctrine is, that whatever puts a party upon inquiry, amounts, in judgment of law, to notice; provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding. (4 Kent's Com. 179.) So the purchaser of an estate in the possession of tenants is chargeable with notice of the extent of their interests as tenants; for, having knowledge of the tenancy, he is bound to inform himself of the conditions of the lease. The general rule is, that possession of land is notice to the purchaser, of the possessor’s title. (Id. and note b.) Where the purchaser under an unregistered deed was in the open and visible possession of the premises, it was held sufficient notice to protect him against a subsequent purchaser, and to charge the latter with a knowledge of his rights. (6 Wend. 226.) If a deed is 30 years old, it may be admitted in evidence without any proof of its execution, (1 Phil. Ev. 477,) provided the possession of the thing it assumes to convey has gone [359] along and been held in accordance with its provisions. (Cowen & Hill’s Notes to Phil. Ev. p. 1311.) The plaintiff objects to the charge of the judge to the jury, that if they found that the mill was built in 1814, and was in operation when the deed from Nichols to Crocker was given, and that the defendant had not flowed more land than was flowed at the time Crocker received his deed, then the defendant was entitled to a verdict. This deed was dated 12th April, 1815, and conveyed the Gregory and Dusenbury lot on which the mill stood. The defendant, as I understand, derives title from Nichols, to the lands overflowed, by subsequent conveyances ; and which, having been duly recorded, the plaintiff claimed entitled him to be considered as a bona fide purchaser without notice. I am unable to discover any error in this charge. The general principle insisted on by the plaintiff is undoubtedly correct; that there must have been a continued adverse using of the water for twenty years, to a certain extent, to give a right by possession to overflow to that extent. (17 Wend. 568.) But we will suppose a mill in operation, whose dam causes an overflow of three acres of land. The occupant of the mill takes a deed from the owner of the land, of two acres, including the mill and dam. I should think that the grantee acquired the right to maintain the dam at the height it was at the time of the purchase, and that he and his grantees would not be responsible to the grantor, or those holding under him, for any injury which the other acre might receive from an overflow of water produced by the dam. (5 Wend. 525. 4 Kent’s Com. 467.) Quando aliquid conceditur, conceditur id sine quo illud fieri nonpossit. (4 Kent’s Com. 467, note e. Willes, 197. 1 Saund. 323, note 6.) The plaintiff in his second point says that the dam was raised in 1845, flowing more land than was covered before; but the jury have found that the defendant had not flowed more land than was flowed at the time Crocker received his deed, and I do not think their verdict is so entirely against evidence as to justify us in disturbing it. I am of opinion that the judgment should be affirmed.