It appears in the case that the "private road," so called, reached to the defendant's premises, and that the plaintiff was accustomed to cross the defendant's premises for a short distance to reach a back lot belonging to him, so that they mutually used each other's land. Some time in the year 1877 the defendant, through his attorney, forbade the plaintiff the use of his land, and thereafter plaintiff notified the defendant that he must not use his land. The only evidence of any grant, mutual or otherwise, is the fact that each used a portion of the other's land. Just where it was used, or whether the same line of travel had always been used by them, seems to be in some doubt; there is a conflict in the evidence in relation thereto. In submitting the case to the jury the court charged, among other things, the following: "There being no direct evidence of an agreement under which the user commenced, there is nothing to rebut the presumption of a mutual grant." This, in substance, is a direction to the jury that the evidence raised the presumption that there was a mutual grant, and that there was no evidence in the case to the contrary; and substantially took from the jury all consideration of the evidence, and did not leave them at liberty to determine from the evidence whether there was or was not a mutual grant, but was practically a decision by the court that, as a matter of law, upon the evidence presented, "there was a mutual grant of a right of way." This, I think, was error. Whether there was or was not such a grant was a question of fact to be determined from all the evidence in the case. The notice given by each of the parties to the other was evidence to be taken into consideration by the jury as to how the parties themselves understood the matter. For the errors indicated, the judgment should be reversed, and a new trial granted, costs to abide the event. All concur. (70 Hun, 554.) PEOPLE et al. v. RELIANCE MARINE INS. CO., Limited. 1. MARINE INSURANCE COMPANIES-TAXATION OF PREMIUMS-EXEMPTIONS. Under Laws 1885, c. 276, authorizing reduction in taxes on the amount of premiums received by a company reinsuring in companies authorized to issue policies in the state, a foreign marine insurance company is not entitled to the reduction, the act being an amendment of Laws 1879, c. 489, which refers exclusively to fire insurance companies. 2. SAME. Laws 1892, c. 690, the provisions of which are made applicable to all corporations authorized to make insurance, and which re-enacts the provisions of Laws 1885, c. 276, authorizes the reduction in taxes for reinsurance in the case of foreign marine insurance companies. 3. STATUTES-RETROACTIVE EFFECT. As it is provided that Laws 1892, c. 690, shall take effect October 1, 1892, it will, in the absence of any provision showing an intent that it shall be retroactive, relate only to reinsurance after that date. Case submitted on agreed statement. Submission of controversy by the people of the state of New York and the superintendent of insurance as plaintiffs, and the Reliance Marine Insurance Company, Limited, as defendant, on agreed statement of facts. Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ. Simon W. Rosendale, Atty. Gen., (John W. Hogan, Dep. Atty. Gen., of counsel,) for plaintiffs. MacFarland & Parkin, (W. W. MacFarland, of counsel,) for defendant. HERRICK, J. This is a submission of a controversy pursuant to section 1279 of the Code of Civil Procedure. The defendant is a marine insurance company incorporated under the laws of Great Britain and Ireland for the purpose of carrying on the business of marine insurance. It has a branch office in the city of New York, where it carries on such business under and pursuant to the laws of the state of New York. For the year ending December 31, 1892, the premiums received by it, or agreed to be paid to it, upon insurance effected or procured in this state against marine losses and risks, was the sum of $193,570.17. During the same year the defendant reinsured part of the risks taken for said premiums in domestic and foreign insurance corporations authorized to issue policies in this state. The total amount of the premiums paid by it for such reinsurance was the sum of $48,482.88. The amount paid for such reinsurance before the 1st day of October, 1892, was $43,207.40; the amount paid after the 1st day of October, 1892, was $5,275.48. The net amount of premiums received by the defendant, after deducting the amount paid for such reinsurance, was the sum of $145,087.29. The defendant has paid to the superintendent of insurance the tax of 2 per cent. on such net amount, after deducting therefrom all other taxes paid the state, but refuses to pay a tax of 2 per cent. on the sum of $48,482.88, the amount paid by it for reinsurance. The plaintiffs claim that the defendant is liable to pay the tax on the premiums received by it without any deductions for premiums paid for reinsurance. It is conceded that the defendant is liable to pay the tax of 2 per cent. upon all the premiums received by it upon insurance, procured in this state, unless there is some exception, reservation, or exemption in some of the statutes relative thereto. Any rebate, deduction, or exemption from taxation will not be presumed, but must be found plainly expressed in the statute. People v. Commissioners of Taxes, 95 N. Y. 554. The defendant, in its claim for exemption, relies upon chapter 276 of the Laws of 1885, and section 22, c. 690, of the Laws of 1892. Chapter 276 of the Laws of 1885 provides that: "No credit of any kind shall be allowed or given, either as a reduction of taxes or liabilities, to any company transacting business in this state for reinsurance made in companies not authorized to issue policies herein; and it shall be the duty of the superintendent of the insurance department to require schedules of reinsurance to be filed by each company at the time of making its annual statement to said department." The plain inference from this is that, where reinsurance is made in corporations authorized to issue policies in this state, credit shall be given and allowed either as a reduction of taxes or liabilities; and that, I understand, has been the construction placed upon it by the insurance department of the state. But the question arises as to whether corporations, such as the defendant in this case, come within the provisions of that act. Chapter 276 of the Laws of 1885 is an amendment of chapter 489 of the Laws of 1879, and must be construed as a part of that act. The intention of the legislature "must be sought by joining the amendment with the act to which it is an addition, and considering the whole as but one act." In re Hudson City Sav. Inst., 5 Hun, 612. Interpreting the act of 1885 in that manner, I cannot see that it applies to foreign marine insurance companies. The title of the act refers to fire insurance companies, and those only, and the different sections of the act refer to fire insurance companies. The section preceding the one amended by the act of 1885 refers exclusively to fire insurance companies; and it is evident, in considering the act as a whole, that it was intended to apply to fire insurance companies only. The defendant, I conclude, therefore, is not exempted by the act of 1885 from paying taxes upon premiums of reinsurance made by it. Chapter 690 of the Laws of 1892 it is provided shall take effect October 1, 1892. See section 293. By section 1, the provisions of that law are applicable to all corporations authorized by law to make insurance. The law therefore applies to the defendant. Section 22 of the act of 1892 contains in substance a re-enactment of the provisions of chapter 276 of the Laws of 1885, and by virtue thereof I think the defendant is entitled to exemption from taxation upon the amount paid by it for premiums for reinsurance paid after the 1st day of October, 1892; but the act cannot be held to relate to premiums paid for reinsurance prior to October 1, 1892. There is nothing in the act to show that the legislature intended that it should be retroactive, and, in the absence of any such expressed intent, it must be construed as referring to the future only. In re Delaware & H. Canal Co., 129 N. Y. 105, 29 N. E. Rep. 237. I am of the opinion, therefore, that the defendant, for the purposes of taxation, is entitled to have deducted from the gross amount of the premiums received by it during the year 1892 the amount of premiums paid by it for reinsurance after October 1, 1892, and that the plaintiffs are entitled to have judgment against the defendant for the sum of $864.14, being 2 per cent. upon the sum of $43,207.40, the amount of premiums paid by it for reinsurance prior to October 1, 1892. Let judgment be entered accordingly. All concur. (70 Hun, 557.) TOWNSEND v. BELL et al. (Supreme Court, General Term, Third Department. July 8, 1893.) WATER COURSES-POLLUTION-REASONABLENESS OF USE. In an action against a factory owner for polluting a stream it is a material question whether defendant's use of such stream was reasonable. Appeal from special term, Ulster county. Action by William H. Townsend against Winslow M. Bell and Arthur E. Bell. Judgment, from which defendants appeal. Reversed. For former report, see 17 N. Y. Supp. 210. Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ. Linson & Van Buren, (John J. Linson, of counsel,) for appellants. J. Newton Fiero, (George C. Reynolds, of counsel,) for respondent. HERRICK, J. This is an action brought by the plaintiff against the defendants for damages claimed to have been suffered by the plaintiff by reason of the defendants' polluting and discoloring a stream of water which flowed by and in front of plaintiff's premises. The defendants are the owners and operators of a plush factory situated upon a stream, and at a short distance above the premises of the plaintiff. Upon defendants' premises is a pond constructed more than 20 years ago by a former proprietor of said premises. The defendants used the water of this pond in operating their factory, drawing the water from it, and then discharging into the stream the refuse from the factory, polluting the waters by the materials used in dyeing and rinsing the goods colored at the factory. From the view that I have taken, it is unnecessary to set forth all the facts of the case found by the trial court. case was tried before the court without a jury. The Among other things found by the court was that the use which defendants made of the stream is necessary in carrying on their business. The defendants requested the court to find, as a matter of fact, that "the use by defendants of the waters is a reasonable one." In response the court said: "I refuse to pass on the question sought to be presented by this finding on the ground that, under the decision of the general term in this case, whether the use was a reasonable one or not is not material." This, I think, was error. It is elementary law that a riparian proprietor is entitled to a reasonable use of the stream of water running through his property, as a part of his proprietary rights in the soil. Gould, Waters, 220; Ang. Water Courses, p. 240; Bullard v. Manufacturing Co., 77 N. Y. 525; Prentice v. Geiger, 74 N. Y. 341. Gould v. Dock Co., 13 Gray, 442; Merrifield v. Worcester, 110 Mass. 216. Hence it becomes a question, in every case where a particular use of water is sought to be enjoined, whether such use, under all circumstances, taking into consideration the equal rights of other riparian proprietors, is a reasonable exercise of the rights of a V.24 N.Y.S.no.3—13 riparian owner or proprietor. I do not understand that when the case was in this court before (62 Hun, 306, 17 N. Y. Supp. 210) the court decided that the question as to whether the use of the water was a reasonable or unreasonable one was not a material question in the case. The prevailing opinion would seem to have been more to the effect that the use of the water in this particular case, as shown by the facts then before the court, was one that the defendants had no right to exercise, and that in fact it was an unreasonable and illegal use, and one which, therefore, irrespective of any special injury that could be shown to have resulted therefrom to the plaintiff, the defendants were not entitled to enjoy. I do not see-taking into consideration the various uses to which water and streams of water are put for milling and manufacturing purposes, by means of which streams of water are necessarily used, and have been found, time and again, by the courts, to have been more or less discolored, polluted, and lessened in quantity— that any distinction, in principle, can be drawn between that use by the riparian proprietor which obstructs the flow of water, and subtracts from its quantity, and that which discolors, deteriorates, or pollutes it. Running streams cannot be used for commercial or manufacturing purposes, and the waters thereof retain their pristine clearness and purity. The test of what is a reasonable use, I think, applies to all uses by the riparian proprietor of the waters which flow through his premises. The question whether a particular use of water by one riparian owner is consistent with the rights of other owners is generally a question of fact to be determined by a jury. "And the test, in the absence of a right by prescription or grant, is whether the particular use, under the circumstances, having regard to the maxims covering the right of property, is a reasonable one." Prentice v. Geiger, 74 N. Y. 341--345. What is a reasonable use is also a question of fact to be determined by a jury or trial court. Herman v. Roberts, 119 N. Y. 37--45, 23 N. E. Rep. 442; Bullard v. Manufacturing Co., 77 N. Y. 530. The question as to whether the use was a reasonable one, then, being material, and one necessary to be determined in rendering a final decision in the case, and that being, as we have seen, a question of fact for a jury, or for the court acting in place of the jury, a refusal to make any finding at all in respect thereto, on the ground that it was not material, was error of law. Baumann v. Pinckney, 118 N. Y. 615, 616, 23 N. E. Rep. 916; James v. Cowing, 82 N. Y. 449. For that error the judgment should be reversed, and a new trial granted; costs to abide the event. All concur. (70 Hun, 111.) PEOPLE v. HAYES. (Supreme Court, General Term, First Department. June 30, 1893.) 1. NOTE-IMMORAL CONSIDERATION. A note given to a woman with whom the maker had sustained illicit relations, and by whom he had had a son, not given for the purpose of continuing the relations, is not bad, as given for an immoral purpose. |