case, and citing a few out of the many authorities upon which it is based.

Where the owner of two parcels of land conveys one by an absolute and unqualified deed, we think that an easement will be implied in favor of the land retained by the grantor, and against the land conveyed to his grantee, only in case the burden is apparent, continuous, and strictly necessary for the enjoyment of the former. Outerbridge v. Phelps, 13 Abb. N. C. 117; Shoemaker v. Shoemaker, 11 Abb. N. C. 80; Scrymser v. Phelps, 33 Hun, 474; Dales v. Ceas, 5 Wkly. Dig. 400; Burr v. Mills, 21 Wend. 290, 292; Sloat v. McDougal, (City Ct. Brook.) 9 N. Y. Supp. 631; Butterworth v. Crawford, 46 N. Y. 349; Longendyke v. Anderson, 101 N. Y. 625, 630, 4 N. E. Rep. 629; Buss v. Dyer, 125 Mass. 287; Mitchell v. Seipel, 53 Md. 251; Burns v. Gallagher, 62 Md. 462; Brown v. Burkenmeyer, 9 Dana, 159; McDonald v. Lindall, 3 Rawle, 492; Dillman v. Hoffman, 38 Wis. 575; O'Rorke v. Smith, 11 R. I. 264; Cooper v. Maupin, 35 Amer. Dec. 464, note; Collins v. Prentice, 15 Conn. 39; Wheeldon v. Burrows, 12 Ch. Div. 31; Crossley v. Lightower, L. R. 2 Ch. App. Cas. 478; Suffield v. Brown, 4 De Gex, J. & S. 185; Russell v. Watts, 25 Ch. Div. 572; Brown v. Alabaster, 37 Ch. Div. 504; Washb. Easem. (4th Ed.) 104; Gould, Waters, §§ 357, 362; 6 Amer. & Eng. Enc. Law, 143; 4 Rev. St. (8th Ed.) p. 2461, § 1. The trial court found "that, at the time of the making and execution of the said mortgage, said mills were in operation, and there had been maintained a dam across said creek through said lot 43, which set the water back up the creek to lot 37." It was not expressly found, however, that there was any apparent overflow at the time when the mortgage or the deed was given, or that the mortgagee or the grantee had any notice of the facts when either instrument was accepted. While the dam was high enough to overflow the 41 acres when the pond was full, it does not appear, unless by implication, that any standing water was visible at the date of the mortgage, or that there was then any visible sign indicating "to a person reasonably familiar with the subject, upon an inspection of the premises, that water had stood there in the past. Butterworth v. Crawford, 46 N. Y. 349. At the date of the deed the dam was not in use, as it had been partly swept away by a freshet. Both the mortgage and the deed were given at a season of the year when the water of streams in this state is ordinarily low. Thus it is by no means clear, from the facts as found, that, at the date of either instrument upon which the plaintiff's title is founded, there was any visible overflow, or apparent sign of previous overflow. As regularity is presumed, the one who claims that an error was committed must cause it to clearly appear, or effect will be given to the resumption by affirming the judgment appealed from. Tracey v. Altmyer, 46 N. Y. 598 Appleby v. Bank, 62 N. Y. 12, 18. But even if the findings, when liberally construed, show that the alleged easement was apparent and continuous, they utterly fail to bring it within the rule of strict necessity. It

99

does not appear that the water power of defendant would be materially diminished if he were not permitted to overflow the lands in question. The maximum overflow affects but little more than two acres of plaintiff's land, which, if the dam should be restored, would be rendered "wet or spongy," and unfit "for agricultural purposes. The defendant claims that the capacity of his mill, when the pond is full, is about 50 barrels of flour each day, and that the fall at the bulkhead is 11 feet, but it does not appear what the capacity or fall would be with the overflow restricted to the lands which he has the right to overflow. We are not informed as to the fall of the stream as it flows through the land affected, the grade of the banks, the depth of the water when the overflow is greatest, or the quantity of water that was accumulated or stored on the two acres by the old dam. For aught that appears, the advantage of flowing such a small quantity of land was so trifling as to raise the presumption that the mortgagor willingly abandoned it, when he omitted to mention or reserve it from the operation of the mortgage. The doctrine of implied reservation rests upon the presumed intention of the parties as it is gathered from the conveyance, interpreted in the light of the circumstances surrounding them when it was executed, and with reference to which, as existing facts, they are supposed to have contracted. If it appeared that the mill could not be operated without overflowing the plaintiff's land, it would be cogent if not conclusive proof of that strict necessity which does not create the easement, but is simply evidence as to the intention of the parties. If, on the other hand, it appeared that, owing to the slight declivity, the accumulation of water was insignificant, and that the mill property was worth substantially as much without the right in controversy as with it, there would be no proof of "necessity," and nothing upon which an implication in favor of the mortgagor or grantor could rest. Even the dimensions of the pond are not furnished us, and we cannot compare its extent with and without the two acres, although it appears to extend partly across one lot, and entirely across another, before it reaches the lands of the plaintiff. When it is claimed that an easement exists by necessity, evidence of the necessity must be given. Stuyvesant v. Woodruff, 47 Amer. Dec. 156; Gayetty v. Bethune, 14 Mass. 49, 55; Oliver v. Pitman, 98 Mass. 50. While absolute physical necessity need not be shown, as in the case of land-locked premises, or the support of a wall, there must be a reasonable necessity, as distinguished from mere convenience. Root v. Wadhams, 107 N. Y. 384, 14 N. E. Rep. 281; Hollenbeck v. McDonald, 112 Mass. 250; Brown v. Berry, 6 Cold. 98; Cooper v. Maupin, 35 Amer. Dec. 464, note. But in the case before us, where certainty is required, all is conjecture. There is neither finding nor evidence that, in order to run the mill with substantially undiminished efficiency, it is necessary to maintain the dam at such a height as would cause the water to flow over the plaintiff's land. Upon the facts as found, we think it would

In an action tried before a referee, judgment was rendered dismissing the complaint, after testimony had been submitted by both sides. The referee made no findings of fact, nor did plaintiff request him to do so. Held, under Code Civil Proc. § 1022, which provides that "the decision of the court or the report of the referee upon the trial of the whole issue of fact must state separately the facts found and the conclusion of law," that the judgment was not reviewable by the court of appeals. LANDON, J., dissenting. Appeal from 7 Ñ. Y. Supp. 682, dismissed.

Appeal from superior court of New York city, general term.

Action by Cornelia Gilman against Augustus Prentiss and one Tucker. Defendants obtained judgment, which was affirmed by the general term. Plaintiff appeals. Appeal dismissed.

Charles E. Hughes, for appellant. Charles J. Hardy, for respondents.

PARKER, J. Before any evidence was taken the defendant Tucker moved to dismiss the complaint. The motion was not passed upon, the referee reserving his decision. After the plaintiff rested, the defendant again made a motion to dismiss the complaint, but no ruling was made, the referee again reserving decision. The defendants thereafter introduced evidence, both oral and documentary, in support of their position, and rested. The motion to dismiss the complaint was not then - nor thereafter renewed. The plaintiff called several witnesses in rebuttal, and was permitted to amend his complaint on terms, after which the testimony was closed, and the "case summed up and submitted" to the referee. Subsequently the referee made a report dismissing the complaint, which report did not contain any findings of fact; nor did he at any time make, nor was he requested to make, any such findings, the plaintiff contenting herself by filing exceptions to the report. The question is therefore presented whether the judgment can be reviewed because of the failure of the referee to comply with section 1022 of the Code of Civil Procedure, which provides that the decision of the court or the report of the referee, upon the trial of the whole issue of fact, must state separately the facts found and the conclusion of law." This neglect of the referee, if neglect it was, could have been remedied at the instance of the plaintiff in the manner provided by the Code, but no attempt was made in that direction. Indeed, the plaintiff did not even submit to the referee a written statement of the facts

which she deemed established by the testimony. We held in Wood v. Lary, 124 N. Y. 83, 26 N. W. Rep. 338, that, in every case heard by a referee, if any evidence be presented, a decision stating separately the facts found, and the conclusions of law based thereon, must be made; otherwise the judgment will not be reviewed. Place v. Hayward, 117 N. Y. 487, 23 N. E. Rep. 25, does not oppose, but supports, such determination. In that case the defendant's counsel, at the close of plaintiff's evidence, without announcing that he had rested his case, asked for and obtained a dismissal of the complaint. Afterwards the referee made his report, containing findings of fact and of law. It was held that what the referee did was to nonsuit the plaintiffs, and therefore he should have made no findings of fact, except such as would justify a nonsuit. Judge EARL, speaking for the court, said: "Under the Code, the referee was required to make findings of fact and of law after granting the nonsuit, but he had no right to make any findings of fact depending upon disputed or inconclusive evidence." That it was the view of the court that, in case of a nousuit before a referee, the facts found must be in accord with the testimony, most strongly supporting the plaintiff's contention, is evidenced, not only by the discussion of facts, with which the opinion abounds, but also by the sentence following the one last quoted: "Therefore, to maintain this judgment, the defendant is bound to show that there was no disputed question of fact which, upon & jury trial, the court would have been required to submit to the jury, and that upon the undisputed evidence he was entitled to judgment. In Forbes v. Chichester, 125 N. Y. 769, 26 N. E. Rep. 914, the referee made a report dismissing the complaint, to which the plaintiff's counsel excepted, and then Judge EARL remarks, in his opinion: The referee "made formal findings of fact and law, as he should have done, and proper exceptions were taken to them by plaintiff's counsel." It seems to be settled, therefore, that findings of fact are necessary, even when the complaint is dismissed at such a stage of the hearing as to entitle it to be treated as a nonsuit. It is certainly not the less important that the statutory requirement in such respect should be insisted upon when the testimony is all in, the arguments of counsel made, and time for deliberation by the court or referee taken. In such a case, this court held in Bridger v. Weeks, 30 N. Y. 328, that the judgment would not be reviewed, and, so far as we have observed, the position then taken has been steadily maintained. The appeal should be dismissed. All concur, except BRADLEY, J., not voting, and LANDON, J., dissenting.

99

(132 N. Y. 483) JEFFERSON et al. v. NEW YORK EL. R. Co. et al.

(Court of Appeals of New York, Second Division. April 26, 1892.)

EXPERT EVIDENCE-OBJECTION-PRACTICE.

1. In an action against an elevated railroad company for damages to abutting property, it is reversible error to allow expert witnesses to

state what the property would be worth if it was not affected by the road and its operation.

2. Such error is not rendered harmless by the fact that there is other evidence in the case sufficient to support the judgment, where such other evidence is not sufficient to compel such judgment.

3. Where a question calling for the opinion of the witness is objected to on the ground that the subject is "not within the competency of this witness, and not within the competency of any witness," the objection sufficiently raises the point whether the subject is one on which expert evidence in admissible.

11 N. Y. Supp. 488, reversed.

Appeal from supreme court, general term, first department.

Action by Susan Jefferson, Jr., and others, against the New York Elevated Railroad Company and others, to enjoin defendants from maintaining an elevated railway in front of plaintiffs' premises, and for damages. Plaintiffs obtained judgment, which was affirmed by the general term. Defendants appeal. Reversed.

The other facts fully appear in the following statement by VANN, J.:

Action to enjoin the defendants from maintaining and operating an elevated railway in front of the premises belonging to the plaintiffs, known as "No. 934 Ninth Avenue;" to recover the damages already sustained by reason of the construction and operation of said railway; and, in case the defendants are permitted to continue to operate the same, to compel them to pay the permanent damages sustained by the plaintiffs in consequence thereof. The judgment, as entered, awarded the sum of $2,000 for damages already sustained, with a permanent injunction against the further operation of the railroad, provided the defendants should not within a specified time tender to the plaintiffs, for execution, a conveyance of the "easements" found to have been taken, and, upon the execution and delivery of the same, pay them the sum of $4,000, besides interest. The premises in question are situated on the easterly side of Ninth avenue, about the middle of the block be. tween Fifty-Ninth and Sixtieth streets, and consist of a five-story apartment house, built of brick and brownstone. On the corner of Fifty-Ninth street is a station, but no part thereof is in front of the plaintiffs' property. There are no columns in front of the house, and the nearest rail is 36 feet and 6 inches distant therefrom. The avenue is about 120 feet wide, and the elevated structure, which is 15% feet high at its lowest part, occupies a space 38 feet and 4 inches wide. The railway was constructed in 1878, and the house was erected two years thereafter. Prior to the building of the road, this lot and the neighboring lands were vacant. The lot cost $5,500 in 1864 or 1865, and the original cost of the building was $18,000, but it was subsequently altered and extended at an expense of $12,000. The two lower floors are adapted to store purposes, and each of the other floors is divided into two suites of six rooms each. Only one room of each suite fronts towards the railway, and the rest of the rooms are lighted wholly from the rear, sides, and an air shaft. The plaintiffs are now the sole

owners of the property; but prior to October 17, 1885, they owned it in common with two other persons, whose claim for damages they acquired by assignment before the commencement of this action. Since the railroad was built, there has been a decided increase in the value of real estate in the district where the premises in question are situated. Evidence was given, tending to show that the present value of plaintiffs' lot, without the building, is $17,000.

Samuel Blythe Rogers, for appellants. Charles G. Bennett, for respondents.

VANN, J., (after stating the facts.) Upon the trial of this action, one Cody was called as a witness for the plaintiffs, and after testifying to his qualifications as an expert in estimating the value of real estate, and stating his judgment as to the rental value of the premises in question just before certain alterations had been made therein, he was asked the following questions: "What, in your judgment, would have been the fair rental value of those premises if they had not been affected by the construction and operation of the elevated road? What, in your judgment, would be the fair selling fee value of those same premises if they were not affected by this road and its operation? What would the fair rental value be if they were unaffected by this road and its operation?" To each of these questions the defendants objected "as incompetent, irrelevant, immaterial, and conjectural; as not within the competency of this witness, and not within the competency of any witness; and as including all the damages due to the railroad, aud not all the damages due to the taking of the plaintiffs' easement." The objections were overruled, and the defendants excepted. To the first question the witness answered: "It would be worth four or five dollars a month more." He then added that in his judgment the present fee value of the premises, situated as they are, with the road in operation, is about $40,000. In answer to the second question, · he said: "$45,000. In my judgment the fair rental value of those premises, as they are now to-day, is, the store and basement about $1,200 a year; the next floor, about $600 a year; the third floor, about $700; the fourth floor, $650; and the top floor, $600." His answer to the third question was as follows: "The store and basement would be worth $1,500 a year; the next floor would be worth $700 a year; the next floor, $800 a year; and the fourth floor $720,-$60 a month. The top floor would be worth as much as $720.' Another expert witness for the plaintiffs was asked for his judgment as to the fee value of the premises if they were not affected by the railway and its operation; and, subject to the same objection, he said from forty-seven to forty-eight thousand dollars. When asked as to the rental value if the premises were unaffected by the railway and its operation, he answered, subject to the same objection, that it would bring at least seven or eight hundred dollars more.

In actions brought by abutting owners

chains in width of the plaintiff's land. The defendant's contention is to the contrary, and the determination of the question was at the trial made dependent upon the fact whether the south line in question was straight, or was governed by a line not entirely so, which had been run prior to the treaty of 1802. By the treaty of 1797 with Robert Morris, and the deed then made pursuant to it by the sachets, chiefs, and warriors of the Seneca Nation, the Indian title to a large portion of the land, commonly known as the "Holland Land Company Purchase, was extinguished, and certain lands were_reserved and excepted from the grant. The Holland Land Company, having purchased the land, and taken the right of pre-emption from Robert Morris, caused in 1798 a survey of the reservation in question to be made, and the lines of its boundaries to be made and described; in 1802 made a treaty with that nation of Indians, and pursuant to it a deed was then made by and between the parties to such treaty, whereby the Seneca Nation exchanged with the Holland Land Company certain lands reserved by the treaty of 1797, and that company, by its representatives, in consideration thereof, (reserving the right of pre-emption,) exchanged, ceded, and released to the Nation the land embracing the reservation in question, which was bounded and described as follows: "Beginning at a post marked 'No. O,' standing on the bank of Lake Erie, at the mouth of the Cattaraugus creek, and on the north bank thereof; thence along the shore of said Lake N., 11 degrees E., 21 chains N., 13 degrees E., 45 chains N., 19 degrees east, 14 chains 65 links, to a post; thence east one hundred and nineteen chains to a post; thence south fourteen chains twenty-seven links to a post; thence east six hundred and forty chains to a post standing in the meridian between the 8th and 9th ranges; thence along said meridian south six hundred and seventeen chains seventy-five links to a post standing on the south bank of Cattaraugus creek; thence west one hundred and sixty chains to a post; thence north two hundred and ninety chains twenty-five links to a post; thence west four hundred and eighty-two chains thirty-one links to a post; thence north two hundred and nineteen chains fifty links to a post standing on the north bank of Cattaraugus creek; thence down the same, and along the several meanders thereof, to the place of begining,-to hold, to the said parties of the first part," (the Seneca Nation of Indians,) "in the same manner and by the same tenor as the lands reserved by the said parties of the first part in and by said treaty or convention entered into on Genesee river the fifteenth day of September, 1797."

The south line in question of the reservation is that above described as "thence west four hundred and eighty-two chains thirty-one links to a post." Each of those treaties was conducted on the part of the Seneca Nation by a commissioner duly appointed for the purpose. There is no dispute about the location of the corner at the east end of that line, nor substan

tially any about that at its west end. The survey represented the boundary lines quite definitely by reference to distances with pointers and by witnesses to corners, and by it the line in question, there mentioned as "thence west on said sixth parallel six miles two chains and thirty-one links," was in that manner described with particularity. The defendant relies upon the line as located by the Holland Land Company; and the plaintiff depends upon the line as surveyed in 1878 pursuant to the act of congress of May 25, 1878, c. 139, entitled "An act to authorize the survey of the Cattaraugus Indian reservation of the state of New York," which authorized the secretary of the interior to cause the reservation "to be resurveyed in accordance with the original survey thereof, and the exterior boundaries thereof to be marked by stone or iron monuments," at the expense of the Seneca Nation of Indians, who were authorized to select a surveyor, to be approved by the secretary of the interior, who was authorized to pay the surveyor out of moneys under his control, belonging to the nation of Indians. And it was further provided that the surveyor should make plats of the reservation, showing the lines of its exterior boundaries, etc., to be submitted to the commissioner of the general land office for examinaton and approval. There was also a general statute on the subject, which provided that "whenever it becomes necessary to survey any Indian or other reservation or any lands the same shall be surveyed under the direction and control of the general land office, and as nearly as may be in con. formity to the rules and regulations under which other public lands are surveyed." Rev. St. U. S. § 2115. The surveyor was selected, he made a survey which was duly approved, and by it he treated the south line as straight, and so ran it. This line so run and located included in that north of it a strip, upwards of eight rods in width, of the land occupied by the defendant as part of his farm. The line as described in the treaty would, if nothing appeared to the contrary, be presumed to be a straight one between its two terminal points. Kingsland v. Chittenden, 6 Lans, 15. And such is the statutory direction for making surveys of public lands when the boundary lines have not before been actually run and marked. Rev. St. U.S. § 2396. This rule would necessarily be applicable to the line in question if it had not been actually located by the previous survey; and, if it had, the survey made upon the statutory direction or authority, before mentioned, would not have the effect to enlarge the reservation by change in the location of the line.

The proposition is too well settled to require any reference to authorities on the subject that courses and distances mentioned in conveyances must yield to the lines as actually and duly made by survey, and described by marks and monuments of land conveyed. It is, however, said that there was not nor could have been any line adopted by practical location founded upon acquiescence, because the Indians, being wards of the government, could not