civil law rule in New York

1895Depuy v. Wurtz, 53 N. Y. 556 ; Frost v. Bisbin, 19 Wend. 11 ; Von Hoffman v. Ward, 4 Redf.

1895Depuy v. Wurtz, 53 N. Y. 556 ; Frost v. Bisbin, 19 Wend. 11 ; Von Hoffman v. Ward, 4 Redf.

1890In Barkley v. Wilcox, 86 N. Y., 140 , the doctrine of the civil law, which holds that the rights of parties with respect to the flow of surface waters is to be governed by the law of nature, and that the lower proprietor may not fill up his land so as to prevent its flow from his more fortunately situated neighbor, does not, in all cases, find application in this state.

1887(Putnam v. Ritchie, 6 Paige, 390 ; Mickles v. Dillaye, 17 N. Y. 86 .) In the Put-man Case the chancellor laid down the rule, as expressed in the head-note, that “ when industrial accessions have been made to property, in good faith, by a person who has the legal title to the property, so that the real owner is compelled to resort to a court of equity to assert his equitable title to such property, this court acts upon the civil law rule of natural equity and compels the complainant to compensate the adverse party for such industrial accessions or improvements, as a condition of granting the eq

1887In Mickles v. Dillaye ( 17 N. Y. 80, 86 ) the rule was applied to a mortgagor who attempted to redeem from a mortgagee in possession under a voidable sale, and the rule adopted is expressed in the head-note of the case as follows: “ When valuable and permanent improvements have been made in good faith by a person standing upon the legal footing of a mortgagee in possession, but who supposed himself to have acquired the absolute title, and such mistake was favored by the omission of the owner, for several years before and after the improvements, to assert any interest in the premises, the mortg

1887In Mickles v. Dillaye ( 17 N. Y. 80, 86 ) the rule was applied to a mortgagor who attempted to redeem from a mortgagee in possession under a voidable sale, and the rule adopted is expressed in the head-note of the case as follows: “ When valuable and permanent improvements have been made in good faith by a person standing upon the legal footing of a mortgagee in possession, but who supposed himself to have acquired the absolute title, and such mistake was favored by the omission of the owner, for several years before and after the improvements, to assert any interest in the premises, the mortg

1864Blk. 254;) Amory v. Flyn, ( 10 John. 102 ;) and Henly v. Walsh, (2 Salk. 686.) Common justice also requires, that where one has incurred necessary expense, or suffered damage, in securing, or caring for, or storing, the property of another which is lost, afloat or astray, and it is afterwards reclaimed, the owner should repay such expense, or pay such damage, and if refused, that an action should be allowed, to recover therefor; that in such case the law should imply a request, and a promise from the owner. [Schenectady Generad Term, May 3, 1864.

1837Many cases on this point are collected by Chancellor Kent in his commentaries (2d vol. 478. 9, and note c. and 481, note c. 3d ed.) Some of the English cases cited by him in the first note, he thinks, if carried out in principle, would go far towards the adoption of the civil law rule, that a sound price implies a warranty; and several American cases, including that of Gallagher v. Waring ( 9 Wend. 20), are looked upon by him as showing a disposition to domesticate the rule with us.

1835Raym. 287, Dowe v. Holdsworth, Peake's N. P. 64, Robert v. Garnie, 3 Caines, 14 , are in support of the civil law rule, denying to the creditor the advantage of án ex post facto election.