Title: Westphal et al. v. City of New York - Court of Appeals of New York, Jan. 5, 1904
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 Material Information
Title: Westphal et al. v. City of New York - Court of Appeals of New York, Jan. 5, 1904
Physical Description: Book
Language: English
Publisher: 69 Northeastern Reporter
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Westphal et al. v. City of New York - Court of Appeals of New York, Jan. 5, 1904
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 18
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004455
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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I o na!f l A 1r- f7Tr frv X VIrTW


cent, and therefore through a source of title
er.anating from the will of this testatrix's
father; but that does not affect the question
presented, which is whether, in exercising
the power, she has made a gift or a legacy
to the extent of Its exercise. She evidently
r:pposed she was doing precisely that, for
!ec used the words "I give and bequeath,"
,-d the authorities are to that effect. In
M.Itter of Dow's Estate, 167 N. Y. 227, 60 N.
. 4139, 52 L. R. A. 433, 88 Am. St. Rep. 506,
a:nd in Matter of Delano, 176 N. Y. 4S6, 68
$. E. 871, we have held that it is the execu-
t!on of the power that gives to the person
t.e property passing under it. The effect of
ciferring a general power of appointment is
to invest its donee with a power of disposi-
t!on as broad as though she was disposing
of her own property. In its exercise she in
fact makes a gift or bequest to persons of her
S.vn selection. In addition to the Delano
i.se, reference may be profitably had. to the
::;,,llsh cases of Attorney General v. Mar-
.ilis of Hertford, 3 Exchequer, 670, 683, and
of I'rcme v. Clement, L. R. 18 Ch. Div. 499,
:.,. where that is held to be a gift or bequest
w'!:!ch passes by the exercise of a power of
i:,'plntment. A legacy is a disposition of
p.-rsonnl property by will, and, when this tes-
tatrl directed her executors to pay the trans-
!fr taxes that might be imposed upon any
of the legacies which she had made, she
iceant, and she must be assumed, in law, to
Lave meant, all the preceding dispositions
yr her, whether of the trust fund or of her
! .!ivldual estate.
I advise the affirmance of the judgment
a:;pealed from, with costs to the respondents,
who have appeared in this court by attorney,
payable by the appellants personally.
PARKER, C. J., and HEIGHT, MARTIN,
V.\NN, and WERNER, JJ., concur. BART-
I.ETT, J., concurs in result on the merits,
but dissents as to the costs payable personal-
ly by executors; being of opinion that the
Oxecutors were entitled to appeal, and should
be awarded costs with the respondents.
Judgment accordingly.


WESTPHAL et al. v. CITY OF NEW YORK.
(Court of Appeals of New York. Jan. 5,
1904.)
DRIVEN WELLS-INJURY TO ADJOINING LAND-
OWNERS-DAMAGES-INJUNCTION.
1. Where a city, by establishment of driven'
w'els and pumping stations, has affected the
-'"iral flow of underground waters as to cer-
:n farm lands, in an action by the owners
t:ereof for damages suffered, and for an in-
:::tion, a judgment that the city pay a cer-
-a sum for damages suffered, and another sum
'r permanent damages, and that the landown-
", on payment thereof, should release to the
.:y the right to maintain its pumping stations,
P proper.
Appeal from Supreme Court, Appellate Dl-
:".ion, Second Department.
Action by August Westphal and others
'aIlnst the city of New York. From a judg-
69 N.E.-24


ment of the Appellate Division (78 N. Y.
Supp. 56) affirming a judgment for plaintiffs
for part of their claim, they appeal. Affirm-
ed.
Charles Coleman Miller, for appellants.
George L. Rives, Corp. Counsel (James Me-
Keen, of counsel), for respondent

GRAY, J. These plaintiffs, as owners of
farm lands now with the city limits of the
defendant, upon leaont o the effect that,
by the establishment driven wells and of
pumping stations, the latter was liable or
having caused and for continuously causing
injuries of an irreparable nature to them,
through-the drying up of a water course and
the absorbing of the natural underground
waters, demanded a inudment for damages
suffered in the past, for a eranent in-
junction against the oer
and such other re as to the court might
seem just. Th concisely stating
its decision, found that the operation of the
defendant's waterworks lowered the water
level under the plaintiffs' lands to a certain
depth, to their damage up to the time of trial
in the sum of $350, and to the permanent
damage of their land in the sum of $300, and
directed judgment to be entered in their fa-
vor, which, as entered, adjudged the ay-
meat of the at damages, and tat the de-
fpnr4nt shnnd be enjoined nnlpsea na e
amount of the permanent damage. It con-
tained the further provision tat, uon y-
ment or tender of the latter am e
plaintiffs should execute a release to the -
fendant of the r t to maintain its pump-
ij tions, etc. An inunction was re-
fused. except in the event of the defenant's
failure to make such payment. The judg-
ment has been athrmed f aunanimou Ae-
terinnnn of th Annellate Division. The
plaintiffs had appealed to that court, and
they have appealed here, manifestly, be-
cause of their dissatisfaction with the amount
of the recovery; but no questions have sur-
vived the unanimous affirmance below, ex-
cept such as relate to the correctness of the
conclusion upon the facts stated, and to the
relief granted by the judgment as entered.
With respect to that, the appellants complain
that such a judgment was not demanded,
and they insist that their constitutional
rights have been violated, as its effect, be-
cause their nronerty is taken from them
without due process of law. rey argue tnat
the defendant gave no notice of its inten-
tion to acquire their property, as it waq
bound to do in exercising the right of emi-
nent domain, and that the right to an ap-
praisal of their property by a jury or by three
commissioners has been denied them. This
argument seems to proceed upon consider-
able misapprehension of the jurisdiction of a
court of equity, and of the procedure of the
trial court in administering equitable relief
upon the facts.
The defendant, to supply a public need of


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69 NORTHEASTERN REPORTER.


its citizens, established the driven wells and
pumping stations upon its own property; but
the effect of their operation has been to with-
draw or to abstract waters from the sur-
rounding lands, to the injury of the plaintiffs.
This was a natural effect, and, as a conse-
quential injury, there has been an invasion
of the plaintiffs' property rights, which con-
stituted a technical trespass, for the result-
ant damages of which a right of action ac-
crued. The act, however, which affected the
plaintiffs, was the use by defendant of its
own property in a manner authorized by law;
and as there was no intentional appropria-
tion of the plaintiffs' property rights, nor
any actual entry upon their lands, it is rather
absurd to object that the failure df the de-
fendant to give notice of an intention to ac-
quire the property of the former raises a bar
against the right to acquire the easements
appropriated through the provisions of this
judgment. But the judgment is not open to
objection on the ground mentioned, nor upon
the other ground that an appraisal of the
value of the property taken, under constitu-
tional methods of procedure, is denied. What
the court adjudged to the plaintiffs was the.
recovery of a sum of money for the damages
sustained up to the trial, and then that they
should recover a certain amount, found to be
the damage to the fee, and that an injunc-
tion would only be ordered in the event that
the defendant failed to pay that amount.
The court, upon what must be regarded by
us as conclusive evidence, ascertained the
value of the property rights appropriated, and
required the defendant to pay that value, in
order to obviate an injunction. In this fea-
ture, the judgment was not mandatory upon
the plaintiffs. The equitable relief adminis-
tered by the court was to compel the defend-
ant to pay to the plaintiffs the value of what
they had been deprived of by its acts, and to
award an injunction only if the defendant
refused to comply. In effect, relief by way
of injunction was denied to the plaintiffs, as
prayed for, but was available to them as a
means of enforcing the defendant's compli-
ance with what the court 'ppaie on Muta-
hie solution of the controversy. The court
was not bhnnn tn gant a permanent iniunc-
tion. because the iniurv was likely tfo nn-
tinuA. when it could be seen that tha onntro-
versy might be settled by compelling the de-
fendant to pay for the right to continue its
work, and thus to fully compensate the plain-
tiffs for the injury to their property,as
though the right had been acquired through
condemnation proceedings formally conldUt-.
ed to that enp. A court of equity is only
bound to award that relief upon the facts
which they appear to warrant when all the
circumstances are taken into consideration.
By coming in and submitting the matters in
controversy between them and the defendant
to a court of equity, the plaintiffs consented
to the exercise of a jurisdiction which is
plenary and unfettered in administering that
full relief which will settle the controversy


upon just principles. The plaintiffs renoun-
ced the right to pursue their remedy at law
for the injuries suffered, and brought the
matter on the equity side of the court, where-
by it gained jurisdiction generally to adjust
the disputes of the parties finally. Lynch v.
Metr. Elev. Ry. Co., 129 N. Y. 274, 280, 29
N. E. 315, 15 L. R. A. 287, 26 Am. St. Rep.
523. When the court determined that full re-
lief was possible, without enjoining the con.
tinuance of the waterworks, by compelling
the defendant to acquire the right to do so
upon a basis of' compensation furnished by
the proofs, it acted quite within its equita-
ble province. American Bank Note Co. v.
N. Y. Elevated R. Co., 129 N. Y. 252, 270, 29
N. E. 302. In the case cited, it was held that
the injunction of a court of equity and its al-
ternative damages are to be deemed a sub-
stitute for the ordinary proceedings for con-
demnation.
I consider that other questions relating to
the city's right or authority to resort to this
means of procuring a water supply require
no discussion. It exists and is clearly recog-
nized in those~charter provisions which au-
thorize the acquisition of real estate for the
satisfaction of municipal public needs, antI
the payment of claims or damages resulting
therefrom or thereupon. Sections 484, 4S5,
Laws 1897, p. 168, c. 378.
The judgment should be affirmed, with
costs.
PARKER, C. J., and VANN, J., concur.
BARTLETT, MARTIN, and WERNER, JJ.,
concur in result HAIGHT, J., absent.
Judgment affirmed.


ULSTER COUNTY v. STATE.
(Court of Appeals of New York. Jan. 12,
1904.)
COUNTIES-RAILROAD AID BONDS-TAXES ER-
RONEOUSLY PAID TO STATE-RECOV-
ERY-RIGHT OF ACTION.
1. Laws 1869, p. 2306, c. 907, as amended by
Laws 1871, p. 558, c. 283, provides.that "all
taxes" except school and road taxes collected
in any town on the assessed valuation of any
railroad in said town for aid in the construc-
tion of the road shall be paid over to the treas-
urer of the county in which the town lies, to be
used in the establishment of a sinking fund for -
the redemption of such bonds. A county paid
into the state treasury part of its state tax de-
rived from taxes so levied on railroads in
towns which aided in their construction by the
issue of bonds. Held, that such county could
recover the amount thereof from the state on
presentation and proof of its claim under Laws
1890, p. 725, c. 336, authorizing the state court
of claims to hear and determine such claims.
2. The fact that the amount so paid by the
county did not exceed that required by the
general tax laws did not entitle the state to re-
tain such moneys, as under Laws 1869, p. 2306.
c. 907, 4, as amended by Laws 1871, p. 558.
c. 283, such money was to be devoted to a
specific purpose, and in so far as the general
tax law was antagonistic to such special act it
must be deemed to have been repealed.
3. The fact that if the state refunds to a
county taxes paid by the county into the state
treasury, which moneys, by Laws 1869, p. 2306,
c. 907, 4, as amended by Laws 1871. p558,




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