#### HILL et al. v. BOARD OF WATER & SEWER COM’RS OF VILLAGE OF WATKINS.

(Supreme Court, General Term, Fourth Department.

May 18, 1894.)

1. Infancy—Appointment of Guardian Ad Litem: Pending Action.

Where a complaint alleges that a person named therein as guardian ad litem of the infant plaintiffs was duly appointed, but the contrary appears at the trial, another person may be appointed and substituted in place of the person named, and the pleadings may be amended accordingly.

2. Trial—Opening Case—Explaining Facts from Map.

It is in the discretion of the court at the opening of a case to allow the facts to be explained from a map which had not been proved or put in evidence.

8. Diversion of Stream—Proof under General Denial.

In an action for diverting a stream, evidence that the title was in a third person, and that therefore plaintiff had no right in the stream, is not admissible under a general denial.

Appeal from Schuyler county court.

Action by Clarqnce F. Hill and others, infants, by Emmett B. Bus-sell, guardian ad litem, against the board of water and sewer commissioners of the village of Watkins, to recover damages for the diversion of a stream of water. From a judgment entered on a verdict in favor of plaintiffs for $60, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

C. M. Woodward and O. P. Hurd, for appellant.

Irving W. Cole, for respondents.

MERWIN, J.

This action is brought to recover damages for the diversion of a stream of water. In the complaint it is alleged that the plaintiffs are, and were at the time of the alleged diversion, the owners and in possession of certain real estate in the village of Watkins, consisting of a house and 12 lots, of the value of $10,000; that about 1,243 feet to the westward of plaintiffs’ premises a natural stream of water arises from several springs of water on the lands of one Beach, and, prior to its diversion by defendant, flowed from thence, in an easterly direction, in a clearly-defined natural channel, down across the plaintiffs’ premises, and thence into Seneca lake; that this stream had always been a living and perpetual stream of water, and had always run down such natural channel, about 300 feet of which was across the plaintiffs’ premises; that in the 3'ears 1890 and 1891 the defendant constructed a system of water*806works and built reservoirs, and, in obtaining water to fill the same, it did, without the authority of plaintiffs, and without right so to do, wrongfully appropriate and divert the said stream of water at a point where it is fed and supplied by the said springs, and appropriated the waters of said springs and stream to its own use; and that the plaintiffs are thereby deprived of the use and benefit of the same, to their great damage. The answer contained, among other things, a general denial, and an allegation that the defendant ■had a right .to take the water in controversy under a deed from Beach dated December 3,1890. The verdict represents the diminution in rental value of plaintiffs’ premises by reason of such diversion from the time of the diversion, in June, 1891, to the time of the commencement of the action, in April, 1892.

1. Evidence was given on the part of the plaintiffs tending to prove the allegations of the complaint, and the motion for a nonsuit was, we think, properly denied. It was a question of fact whether the defendant appropriated springs from which there flowed a watercourse, as claimed by the plaintiffs.

2. At the time of the commencement of this action the plaintiffs were infants, and the action was, in form, by George G. Hill, their guardian ad litem. In the complaint it was alleged that George G. Hill had been duly appointed such guardian, and this was denied by the answer. Upon the trial it appeared that he had not been duly appointed. Thereupon, upon the application of the counsel for the plaintiffs,—the original petition being before the court, and it appearing that Emmett B. Bussell was a responsible and proper person and had filed a written consent, duly executed,—the court made an order appointing Mr. Russell guardian, and substituting him in the place of Mr. Hill, and directed that the pleadings be amended in conformity with the appointment. The defendant objected that the appointment at that time was not proper. It was, we think, authorized by the rule laid down in Rima v. Iron Works, 120 N. Y. 433, 24 N. E. 940. The order itself, as entered, is not appealed from.

3. The counsel for the defendant, in opening the defendant’s case, asked to be allowed to explain the facts of the case from a map which had not then been proved, or put in evidence. The plaintiffs’ counsel objected, and the court sustained the objection, and defendant excepted. This was a matter in the discretion of the court, and no circumstances are apparent indicating an abuse of such discretion. The case of Battishill v. Humphreys, 64 Mich. 494, 31 N. W. 894, is cited to sustain the exception. In that case a new trial was granted. In an opinion by one of the justices, several grounds for reversal are stated; and, among others, it is stated that the counsel for the defendant should have been allowed, in the opening, to use a diagram of the premises. The other justices concurred in the result. It does not appear that they placed any reliance on the point as to the diagram.

4. The defendant, at the close of its case, offered in evidence a deed from George G. Freer to John Magee, dated September 1, 1862, and recorded December 11, 1862, and, in connection with this. *807offered to show that Freer was the original owner of the Beach farm, on which the springs in question are situated, and also of the premises now owned by the plaintiffs, and that, before he conveyed to the parties who conveyed to plaintiffs, he gave the deed to Magee. This evidence was offered with a view of showing that the plaintiffs had no right in the stream, the defendant claiming that the deed to Magee operated to transfer to him aE the water rights on the farm. To this evidence the plaintiffs objected that no such defense was set up in the answer, and upon that ground the court excluded it. It was also objected to as incompetent and improper, and the objection sustained. Exception was duly taken. Upon this matter there are two questions; one being whether under a general denial, in a case like the present, the defendant can show title in a third person, and the other being whether the evidence offered, assuming it to be admissible under the pleadings, amounted to a defense, or was material.

It has been held that in an action of ejectment the defense of want of title in plaintiff is admissible under a general denial. Benton v. Hatch, 122 N. Y. 322, 25 N. E. 486; Gilman v. Gilman, 111 N. Y. 265, 18 N. E. 849. In Wheeler v. Lawson, 103-R Y. 40, 8 FT. E. 360, it w;as held that where, in an action of trespass for the' unlawful taking and conversion of personal property, it appears that at the time of the taking complained of the plaintiff was in the actual possession thereof, it is no defense to show title in a third person. The defendant must connect himself in some way with the owner. A like view was taken in Griffin v. Railroad Co., 101 N. Y. 354, 4 N. E. 740; People v. Hagadorn, 104 N. Y. 519, 520, 10 N. E. 891. So that in such a case the evidence of want of title in plaintiff would not be avaüable under a general denial. The general rule is that, in an action of trespass on real estate in the possession of the plaintiff, the possession is sufficient to maintain the action against a wrongdoer (Rood v. Railroad Co., 18 Barb. 84; 2 Greenl. Ev. § 618), and therefore a general denial does not put the title in issue (Squires v. Seward, 16 How. Pr. 478). There is some force in the suggestion that in the present case the action is, in substance, for a trespass upon rights in plaintiffs’ possession, and that a general denial by the wrongdoer does not put in issue the title.

Assuming, however, that the evidence was admissible under the pleadings, did it amount to a defense? It was not claimed that defendant held under Magee. It, in fact, already appeared that defendant claimed under Beach, by deed subsequent to that under which plaintiffs held. The terms of the deed to Magee are to be considered. By it, Freer granted to Magee, and to his heirs and assigns, forever, “the right and privilege of taking water from the farms of the said George G. Freer [describing them in general terms], and gathering together and concentrating said water in one or two reservoirs, and from thence conducting the same through any lands of the said George G. Freer into the said village of Watkins, with a view of supplying such of the inhabitants of said viEage with *808water as may agree for the same with the said John Magee, his heirs or assigns, and for other purposes; and the said John Magee shall have the privilege to enter upon said farms and premises to effectuate said purposes, and to make ditches and drains, underground or otherwise, for the purpose of collecting the water into a body, and to dig, construct, and finish reservoirs to receive and hold the same in such place or places as he shall deem necessary, and at all times to enter upon said farms and premises, doing as little damage as may be, for the purpose of repairing and keeping the waterworks in order.” It is not claimed that Magee or his assigns ever entered or asserted any rights under this deed. The grant was only of the right and privilege to take. The amount was indefinite. "Whatever was not taken belonged to the owner, of the farms, to the same extent as before the grant. So, until the water was taken, it remained a part of the farms as before; and, so far as it was a natural stream, the owners, or whoever was interested, were entitled to have it run as before. The subsequent deed from Freer to the predecessors of plaintiffs gave them the right to have the stream run in its natural course, subject only to the exercise by Magee of his right and privilege. Until that was exercised the plaintiffs’ right to the use was perfect. Washb. Easem. (4th Ed.) 306; Canal Co. v. Kidd, 37 Cal. 282, 311, 319. It would therefore follow that in the absence of any claim that Magee, or any one under him, had ever entered under his deed, or made any claim to the water, the deed itself did not show a want of right in plaintiffs to have the water continue in its natural course. Upon this ground the deed was not material, and was properly excluded.

5. Our attention is called to some other exceptions to rulings upon evidence, but we find in them no sufficient basis for reversal. The defendant also claims error in the refusal to charge several requests. The court, in its charge, very distinctly placed the right of the plaintiffs to recover upon the question whether, at the point where the defendant made its excavations, there was then a spring or springs from which there was a water course extending to and across the plaintiffs’ lands. This was the vital question in the case. Bloodgood v. Ayres, 37 Hun, 359; Colrick v. Swinburn, 105 N. Y. 503, 12 N. E. 427. The charge covered the substance of most of the requests, and contained all that was material for the fair disposition of the case. We are not persuaded that the court, in its refusals to charge requests, committed any error that calls for the intervention of the appellate court. The foregoing considerations lead to an affirmance.

Judgment and order affirmed, with costs. All concur.