FOLGER, J.
1st. The trial court did not err in the admission of testimony. The question which was ruled upon by the court and permitted, called for the act and declaration of Howe, in the presence of Benedict and Brown. As Brown, Benedict and Howe were all interested in the use of the water of this stream, it was competent to show what either of them said or did as to their relative rights, in the presence and hearing of the others.
The witness did, it is true, after the ruling of the court admitting the question, give testimony which was not called for by it; he did state what Howe said and did when Benedict was not present. The court, however, did not at any stage of the trial hold that the testimony was admissible. No objection was made to it by the plaintiffs; no motion was made to strike it out of the case after it was given.
Of course, it cannot be objected to on review.
2d. The respondent places his defence of this action upon the principle contained in Lampman v. Milks ( 21 N.Y., 505). We have lately recognized the soundness of this principle. ( Simmons v. Cloonan, 47 N.Y., 3; Curtis v. Ayrault, id., 73.) And had Brown or Chase, the grantors of the defendant, been the owner in severalty of the grist-mill property, Lampman v. Milks would have been a controlling authority in this case. But Brown was, and so was Chase after him, only a tenant in common of that property, owning but an equal undivided half part of it. No one can by his sole act, even by his express grant, create an easement in premises of which he owns no more than a right held in common with others. ( Marshall v. Trumbull, 28 Conn., 183.) The language of some of the cases is to the extent that the grant is void, and that no interest passes. ( Adam v. Briggs Iron Co., 7 Cush., 361, 368-370. And see 3 Kent,* 460; Washburne on Easements and Servitudes, 37,* 29.) It needs not to go to that extent. Doubtless the grant is void as to tenants in common, and no interest passes which can be used adversely to them.
Nor can a tenant in common of property, who owns other premises in severalty, so use the last as to acquire or exercise for the benefit of his premises owned in severalty, an easement in the property held in common. ( Great Falls Co. v. Worster, 15 N.H., 412, 459, 460.) He cannot by grant, or by operation of an estoppel, or otherwise, confer upon another rights and privileges which he did not have himself. The most that can be claimed for such grant, or act of the owner, is that it may operate by way of estoppel against him and his heirs, and those claiming under him. ( Adam v. Briggs, etc., supra, 368, 369.)
It follows then, that the defendant by the deeds to him acquired no right to back water upon the wheel of the grist-mill, to the injury of the plaintiffs as the owners of that undivided half part of the grist-mill property which they acquired other than by conveyance from Chase. As to them, or the grantees of them, as tenants in common with Brown or with Chase, the conveyance to the defendant, so far as under other circumstances it might operate to create an easement in the grist-mill property, is void; and as to one equal undivided half thereof, they are not affected by it. Even if it shall operate in favor of the defendant to estop the plaintiffs as the successors in interest of Chase; as to the one equal undivided half part of the premises derived from Chase, it is void, as before stated.
In an action by them, relying upon their title derived from the co-tenants of Chase, it cannot be set up against them. That share has come to them unincumbered. ( Collins v. Prentice, 15 Conn., 426.)
If they were now the owners of that half only, they could sue for the injury to it committed by the defendant. ( Odiorne v. Lyford, 9 N.H., 502; Blanchard v. Baker, 8 Greenl., 253; Beach v. Child, 13 Wend., 343.) Nor does it interfere with their right of action that they have succeeded to the ownership of the one-half part, equal and undivided, which was once of Chase, the grantor of the defendant. Conceding that they might, as being in their turn the grantees of Chase, be estopped by his deed to the defendant, that deed so far as it attempts by the circumstances attending its execution, to create an easement in the grist-mill property, is void as to them as the grantees of the co-tenants of Chase, and as against them as such passes no interest.
Nor can the defendant raise any technical objection as to parties. For though tenants in common must join in action to recover for injuries to the realty ( De Puy v. Strong, 37 N Y, 372), yet an objection on the score of non-joinder must be raised by demurrer if the facts appear from the complaint, or by answer if it be necessary to allege other facts than those averred by the complaint. (Id.)
Inasmuch then, as the charge of the court to the jury instructed them in effect, that the grant from Chase to the defendant was a warrant to him for the continuance of any structure as it existed at the time of the execution thereof, though such structure did affect injuriously, and but for that grant illegally, the property of the plaintiffs; there was error therein.
3d. There was not shown on the trial such state of facts as raised for the defendant the defence of the statute of limitation now set up for him.
This action was commenced, as is conceded by his counsel, on the 14th June, 1867. The acts complained of were not commenced earlier than the year 1847; but whether before or after the 14th day of June in that year, is not shown. We are not called upon to presume that they were before that day; the more especially, as it is not apparent that this point was made in the courts below.
For the error in the instructions to the jury, the judgment of the court below should be reversed, and a new trial granted, with costs to abide the event of the action.
All concur.
Judgment reversed.
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