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32 A.D. 212

Sidwell v. Greig

Appellate Division of the Supreme Court of the State of New York · decided 1898-07-01

Appeal by the defendants* Robert A. Greig, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 13th day of July, 1896, upon the decision of the court rendered after a trial before the court, without a jury, at the Sullivan Trial Term.

Decided 1898-07-01

Landon, J. (dissenting):

¶1I think the defendants’ constrúction of the two contracts is right.

¶2A careful examination of the first contract will show that the defendants’ grantor granted nothing to the plaintiff’s grantor but an easement tó overflow the defendants’ land. All the rest of the grants and covenants in the agreement are made by the plaintiff’s grantor to the defendants’ grantor in consideration of the easement of overflow. •

¶3In the second agreement the defendants release all actions, damages and the like which they have or may have against the plaintiff by reason of plaintiff’s breach of the first agreement. What these are is not specified, but it needs no authority to show that a release of *215claims or damages caused by a breach of that contract conveys nothing and grants nothing but immunity from prosecution for infringement upon the defendants’ rights. But from this release, apparently out of abundant caution, the defendants expressly except and reserve their privilege which the first agreement gave them of drawing water on plaintiff’s land for defendants’ mill upon defendants’ other lot lying below.

¶4The argument is inadmissible that, because she reserved rights in the defendants’ land and none in her own, shé thereby granted rights in her own. If plaintiff or her grantor ever had any right of fishing upon defendants’ land, it was not conferred by either of these contracts.

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