#### United States Life Ins. Co. *v.*Oswego Canal Co.

*(Supreme Court, General Term, Fourth Department.*

July 1, 1890.)

L Estoppel—In Pais—Laches.

A land-owner, whose building was erected over and partially supported by stone piers placed in a canal used for hydraulic purposes,, entered into a written contract with the canal company, wherein he agreed to remove the piers within a year and substitute iron columns, so as not materially to obstruct the flow of the water. The canal company, in return, agreed that these iron columns should remain in the canal as long as the building stood. *Held,*that the land-owner’s violation of his agreement in permitting the piers to remain for several years, until they had become so dilapitated as to render his building insecure, did not justify the canal company, which had acquiesced in the delay, in its refusal to shut off the water from the canal for a sufficient time to enable the land-owner to make the alterations provided for in the agreement; the removal of the water being necessary to make the repairs.

S. Same.

The fact that the water had all been drawn from the canal some months previous to the land-owner’s discovery of the dilapidated condition of the piers, and that he had then failed to examine them, and repair the defect, will not justify the company’s refusal to turn off the water so as to enable him to make the repairs.

8. Contributory Negligence—Loss op Kents.

The land-owner will not be permitted to recover for his inability to rent the building on account of its insecurity resulting from the defective condition of the piers, though he requested the company to turn off the water so as to enable him to make the repairs, and notified it that he would hold it responsible for loss of rents, as his own failure to comply with his agreement, and his neglect to repair the piers when he had the opportunity, contributed to his loss.

4. Equity—Necessary Pasties.

The lessees of water from the canal company, who have the privilege of drawing a specific quantity of water from the canal at a fixed yearly rent, are not necessary parties to an action brought by the land-owner against the canal company to compel it to turn off the water, as they are represented by the company, which has the title to and control of the canal as a whole.

Appeal from judgment on report of referee.

Action by the United States Life Insurance Company in the city of New York against the Oswego Canal Company to compel defendant to remove the water from its canal so as to enable plaintiff to repair certain stone piers on which rested a building owned by plaintiff. The referee reported i n plaintiff’s *664favor, and from a judgment entered thereon in Oswego county defendant appeals.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

*Rhodes, Coon & Higgins,*for appellant. *O. P. Buel,*for respondent.

Merwin, J.

The plaintiff claims to be the owner of a lot on the south side of Bridge street, in East Oswego, upon which is a building called the “Hungerford Block.” Under this building and- across the lot the canal of defendant passes. One of the supports of plaintiff’s building is a wall along the center of the canal. This wall is becoming dilapidated so as to render the building insecure, and this action is brought to compel the defendant to turn the water out of its canal a sufficient length of time to enable the plaintiff to repair the wall, and to recover damages through loss of rent occasioned, as it is claimed, by the refusal of the defendant, on the 21st December, 1888, to accede to the demand of plaintiff that the water be turned off. The defendant is a corporation, created by chapter 241 of the Laws of 1823, passed April 23, 1823. By section 5 of that act it was provided that the directors of the company “shall have power to explore and designate the route of a canal or mill feeder; and a proportion of the waters of the Oswego river may be taken and conducted out of said river, at or above the Oswego rapid, so called, at such point or place, and in such manner, as may be deemed proper, so that the water can thereby be carried down upon the east side and bank of said river, to such point or place as may be required by those interested therein, ” the route designated and the manner of making the canal to be determined upon by an engineer who shall be appointed by and be under the direction of the canal commissioners. By section 6 the corporation had power “to enter upon and take possession of such improved or. unimproved lands, not exceeding four rods in width, as shall be necessary for the making of the canal or mill feeder aforesaid, and the works thereunto appertaining,” and provision ivas made for payment of damages to the owners of any property that was so taken. Upon the completion of the canal the company was authorized “to sell, let, or grant and convey, for a limited time, the use of the water which shall be conveyed in said canal, for mills or other hydraulic purposes, to any person or persons owning and occupying lands adjoining thereto, at such price or prices as may be agreed upon by the parties interested.” By section 10, it was provided that, if any time thereafter it became necessary to adopt the said canal as a part of the contemplated improvement between Lake Ontario and the Erie canal, “the canal commissioners shall at all times have full power, in behalf of the state, to enter upon and make all necessary alterations that by them shall be deemed advisable, to take and make use of the waters therefrom for the use and purposes of filling and supplying all locks that may be constructed to connect the said canal with Lake Ontario; and the said canal shall thereafter become the property of this state, without any payment or compensation whatever to said company: provided, however, that the right to all the surplus waters of said canal shall be vested in the company hereby incorporated, and all persons legally claiming under them; and that they shall be permitted to take, make use of, and enjoy the surplus waters of said canal, not necessary for filling or supplying the locks that may be erected by the said canal commissioners.” The defendant, under this act, commenced in 1824 the construction of its canal along the easterly bank of the Oswego river, but before its completion across the plaintiff’s lot, and in the same year, the state adopted and took possession of it as a part of the canal system of the state, and thereupon it became the property of the state, except the rights to surplus water as reserved in the act. The state made some alterations, and continued to use it as a canal for the passage of boats from its completion in or about the year 1825 until the completion by the state of a new and enlarged canal in or about the year 1853, when its use as a canal was discontinued. In the *665mean time the defendant had made use of the surplus water, giving leases to various parties, and resumed the full control of the canal when it was abandoned by the state. On the 25th February, 1823, the surveyor general of the state gave a certificate of sale to Theophilus S. Morgan of lot 19, in the village of East Oswego, block 99. The lot of plaintiff is part of lot 19. On the 22d December, 1828, letters patent were issued to Morgan of lot 19, which were recorded March 26, 1834. Lucius B. Crocker became the owner prior to May 1, 1849, and he, at that date, conveyed to Jesse Bennett, and Bennett, on the 4th December, 1852, conveyed to Hiram Allen. Each of their deeds contained the clause “subject to the rights of the Oswego Canal Company, and the rights of the state.” In 1854 Allen erected the building in question. The canal runs in a northerly direction through and across the lot and under the building, and extends nearly the entire width of the lot, the east foundation wall of the building being on the east line of the canal, and the west foundation wall of the building being at the south end, substantially identical with the west wall of the canal, and at the northerly end some feet west of the west wall of the canal. The building is supported partly by the side foundation walls, and partly by a stone wall placed nearly in the center of said canal, and partly by two rows of iron posts, four on each side, resting on stone piers in the canal between the side and central walls. Soon after it was built portions of the central wall were cut out, and four piers formed for the support of the center of the building.

In 1871 William W. Pulver, through whom plaintiff derives his title, made an agreement with the defendant in regard to the matters here in controversy. This agreement was under seal, and was duly acknowledged and recorded, and both parties now claim advantages under it. Prior *to*the execution of this agreement, Pulver had become the owner of the title of Allen. On the 28th February, 1871, the canal board, by resolution passed pursuant to chapter 267 of the Laws of 1857, determined and declared the canal lands in question abandoned, and afterwards, in the same year, and before the agreement above referred to, all the interest of the state in plaintiff’s lot was quitclaimed to Pulver’s grantor, so far as *it coaid*be done consistent with the act of 1857, which provided that, when any of such abandoned canal lands were then used for a hydraulic canal, the conveyance should not prevent the future use of the land for the same purpose, but should expressly reserve the right to continue such hydraulic canal. This agreement bears date July 31,1871, and, after describing the defendant as party of the first part, and Pulver as party of the second part, proceeded as follows: “ Whereas the party of the first part have and own a hydraulic canal on the easterly side of the Oswego river which crosses lot number nineteen, in block ninety-nine, in the Fourth ward of said city, and whereas the party of the second part is the owner of a building known as • Hungerford Block,’ which is erected over the said canal where it crosses said lot, which building is supported by stone walls on the easterly and westerly sides of said canal, and by stone piers or central walls and iron columns placed in said canal, and whereas the parties hereto desire that their respective rights be clearly and specifically defined, to the end that all contention and controversy may be avoided: Therefore it is hereby mutually agreed by and between the parties hereto, their successors, heirs, and assigns, that the said party of the second part is or claims to be the owner of the fee-simple of that portion of said lot crossed by said building, and that the party of the first part has aright of easement across said lot for the purposes and uses specified in its charter, and to have and maintain its canal free from obstruction, and has the right to enter into and upon the same for the purpose of improving or repairing said canal so as *to render*it most available for hydraulic purposes during its legal existence, and that the party of the second part has the right to keep and maintain the building aforesaid over the said canal, and to erect another building in its stead in case of the destruction or removal of the one *666now standing, and the said company consents, so far as its own rights are concerned, that the said iron columns and any others that may be substituted to replace the piers and central walls aforesaid may remain as supports to said building so long as it stands, and that the said piers and central walls may remain until they are replaced by iron columns, not to exceed one year from the second day of October, one thousand eight hundred and seventy-one; and that, whenever another building is erected in its place and stead, it shall be supported by a stone wall on the easterly and westerly sides of said canal, and the present iron columns, and the iron columns replacing the central stone wall in said canal shall be removed, and the building shall.be supported by iron or other trusses extending from the said walls over the canal so as to sustain and support said building, and that the said iron trusses shall be so erected, placed, and situated as to cause no material obstructions to the flow or passage of water through said canal. And the party of the second part, for himself, his heirs, and assigns, covenants and agrees that they will remove all rubbish, *debris,*and obstructions from said canal, caused by the falling or burning of said building over said canal, or by any materials falling or thrown from said building, without any unnecessary delay; to pay to said party of the first part the expenses of such removal if done by said company; and that they will suffer no unnecessary obstructions to be occasioned by said building, except said columns, central walls, and piers to remain in said canal as aforesaid.” After the execution of the agreement the matter, as between the parties, seems to have rested until 1888. The plaintiff became owner August 31, 1878, and its title from Pulver through intermediate deeds is in terms made subject to the rights of the Oswego Canal Company. On the 21st December, 1888, the plaintiff served on the defendant a written notice stating that the building was in a dangerous condition, “owing to the weakening and partial removal of the supports of said building, due to the action of the water of your canal, ” and that it desired “to make the necessary repairs to the supports of said buildings;” and requesting that the water be emptied from the canal so that such repairs might be made, notifying the company that if it was not done the plaintiff would hold it responsible for all damages caused to the plaintiff either by reason of its inability to rent the premises on account of the unsafe condition, or by reason of the falling of the building. To this request the- defendant did not yield, but in its reply, on December 21, 1888, claimed that the plaintiff’s building was wrongfully located over the defendant’s canal, and that in ease it fell into the canal the plaintiff would be held responsible for all damages. Thereupon this action was commenced' on July 27, 1889. It was held in the court below that the plaintiff was entitled to maintain its building, “and to support the same by the present side foundation walls and central supports, or to substitute for the latter a single row of iron columns in the center of the said canal;” that it has the right “to repair the same, or to substitute for said central supports a row of iron columns in the center of the said canal, and, for the purpose of doing such work, the plaintiff has the right and is entitled to have the flow of water in the said canal across from the said plaintiff’s premises under said building stopped by the said defendant, and the water removed from.the said canal for the period of fifteen days, which time should commence upon ten days’ previous notice in writing from the plaintiff to the defendant;” that the defendant, by reason of its refusal to remove the water, was liable to the plaintiff for the damages sustained by it for loss of rents from December 21, 1888, to the date of the report, (December 28, 1889,) being the sum of $1,880.

The first question to be determined arises over the claim of defendant that its lessees of water are necessary parties to the action. They are affected by the stoppage of the water, and therefore it is urged they should be heard before the right of plaintiff to have the water turned off is determined. There are a large number of leases, and they give the right and privilege of taking *667and drawing from the canal a certain defined quantity of water, for a long term of years, at a fixed yearlyrent; the water to be drawn in flumes or spouts placed and constructed by the lessees in the manner directed by the company. It is also provided that the company “shall have the right at all times, and from time to time, to stop the water above demised, or draw off the water from said canal, for a sufficient length of time to make any necessary repairs or alterations in the canal.” We are of the opinion that the lessees were not necessary parties. The defendant in a certain sense represents them, and it has the title and control of the canal as a whole, and any controversy as to such control is properly with the defendant alone.

Is the plaintiff entitled to have the water turned out of the canal to enable it to make the repairs it claims the right to make? In order to determine this question the agreement of 1871 is to be carefully considered. Pulver then was the owner of the fee, but subject to the rights of the defendant. The claim had apparently been made by the defendant or its lessees that the building or its supports was improperly obstructing the flow of the water. In view of this the agreement was made. It provided, among other things, that the canal company had the right “to have and maintain its canal free from obstruction. ” It also provided that Pulver had the right to keep and maintain his building over the canal, and to erect another in its stead in case of the destruction or removal of the one then standing; and that the iron columns which were then there upon either side of the central piers or walls, and any others that might be substituted to replace such central piers and walls, might remain as long as that building then there should stand; and that such piers and central walls might remain until replaced by iron columns, not to exceed one year from October 2,1871. Whenever another building should be erécted it should be supported by a stone wall on the easterly and westerly sides of the canal, with iron or other trusses extending from such walls over the canal, the trusses to be so situated as to cause no material obstruction to the flow of water, and Pulver'agreed for himself and assigns, “that they will suffer no unnecessary obstruction to be occasioned by said building, except said columns, central walls, and piers to remain in said canal as aforesaid. ” In other words, the company should have the canal free from obstruction, but the stone piers or central walls might remain for a year; then iron columns should be substituted; and these columns, together with the iron columns already there, might remain as long as that building stood; but when another building was erected all the iron columns should come out, and the building be supported by side walls and trusses extending from one to the other, thus leaving the entire passage-way substantially unobstructed. Very evidently the central piers or walls were deemed to be an obstruction, and it became the duty of Pulver, in order to carry out the meaning and object of the agreement, to remove them within the year, having the right to substitute therefor iron columns. The obstruction would be materially reduced, and when a new building was erected the obstruction should be entirely removed in the use of side walls with trusses. ■ The central walls and piers were not removed within the year. They have been allowed to remain, in violation of the agreement, until by the action of the water they have become insecure. This was a result that might have been reasonably expected. It also appears that in the summer of 1888 the state of New York repaired and reconstructed the bulkhead gates leading the water into defendant’s canal, and, in order to do so, cut the water off entirely from defendant’s canal, so that it was empty and dry for some four weeks in the summer, during which the plaintiff might have repaired the foundations of its block. No steps, however, were taken in that direction. Does the delay of the plaintiff and its predecessors, from 1871, or the failure of plaintiff to embrace the opportunity furnished in the summer of 1888, affect the right of plaintiff, if ever it had the right, to demand of defendant the removal of the water from the canal for a sufficient *668length of time to enable the plaintiff to make the proper change in the central supports? In the agreement nothing is said about the manner in which the work shall be done. There is no agreement by the defendant to turn off the water. It is a matter to be determined upon equitable principles. The plaintiff has not a legal right to have it done. If there was no other way to accomplish the result, it would be inferred that this was in contemplation when the result was required. The delay might induce the court to impose conditions, and, in a proper case, might require the payment of damages to parties that might be injured by the temporary loss of water. In the present case there is evidence showing it to be possible, by means of coffer dams, to perform the necessary repairs. Still the referee has found that the removal of the water from the canal is necessary, and that 15 days is a reasonable time in which to do such work. We are not disposed to interfere with this finding. It is quite clear that better work can be done in this way, and that is the bet-, ter for all parties. Nor should the delay or the failure of plaintiff to do the work when the canal was empty in the summer of 1888 preclude the plaintiff from having the benefit of this assistance on the part of defendant. The delay was, to a certain extent, acquiesced in by defendant. We therefore conclude that, as matter of equitable relief, the plaintiff was entitled to have the water temporarily removed for the purposes authorized in the agreement of 1871.

Does it follow that plaintiff is also entitled to recover the damages awarded for the loss of rents ? Coneededly the plaintiff is bound by the Pulver agreement. If Pulver had performed that agreement, and removed the central wall and piers within the time specified, and substituted iron columns, there would have been no loss of rents for the cause here complained of. Had the plaintiff examined the wall in the summer of 1888, and ascertained its condition, as it perhaps should be presumed to have done, and repaired it while the water was out, as the referee finds it might have done, there would have been no loss of rents. The plaintiff now seeks to charge the defendant with this loss, because it did not accede to its demand in December following, while, in fact, if it had performed its own duty there would have been no occasion for the demand. If plaintiff’s loss is attributable to its own neglect it should not recover it of defendant. In its notice the plaintiff did not refer to the Pulver agreement, or offer to perform its obligations. It claimed the right generally, to repair the supports of its building, thereby inferentially claiming the right to continue its central walls; and the same claim is made in the complaint, and appears in the judgment. If, in its notice, it claimed more than it had a right to, the defendant was not bound to accede to it. On the part of the defendant, it may be said, with some considerable force, that the plaintiff, by reason of its delay and neglect, should compensate the defendant for any loss that may be sustained by turning off the water. Having in view the situation of both parties, the more equitable course is to allow damages to neither party. It follows that the judgment herein should be modified by providing that the plaintiff is not entitled to maintain the present central wall or piers, but is bound to substitute therefor a row of iron columns; and that, in case another building is erected, it shall be supported in the manner specified in the Pulver agreement. The judgment should also be modified by striking therefrom the award of damages. As modified, the judgment should be affirmed without costs.

Judgment modified as stated in the opinion, and, as modified, affirmed without costs to either party; judgment to be settled upon five days’ notice before Merwin, J. All concur.