and from the proceeds pay the amount unpaid on the notes, and render the sum remaining to the mortgagor or his assigns. Some of the notes, to secure which the mortgage was given, were paid. Before the receiver was appointed, two of the notes became due and remained unpaid, one on the 10th of August, 1889, and another on the 10th of October, 1889.

On the 25th of October, 1889, William E. Hardy, who brings this appeal, recovered a judgment against the defendant for $4,823.42, and on the same day procured execution to be issued thereon and a levy to be made on the property covered by the mortgage. This levy was made, as will be seen by the dates, three days before the receiver was appointed. On his appointment there were three parties claiming the property, namely, the holder of the chattel mortgage and the unpaid notes to secure the payment of which it was given, Hardy, the judgment creditor, and the receiver. In this condition of affairs, an order was entered in the action to dissolve, upon the consent of the receiver, the mortgagee, and the judgment creditor, the plaintiff's attorney in the suit not objecting; that the property be sold by the receiver, and that "the proceeds arising from such sale or sales be substituted for and take the place of the property sold, and be subject to the same liens as existed against the property, and the rights of all the parties remain in full force and effect as they were at the time of the sale." This order also, upon the same consents, appointed a referee "to hear and determine the rights, liens, and priority of claims to said property or proceeds," the expenses of the sale to be paid first from such proceeds, and the balance to be paid over on the coming in and confirmation of the referee's report as therein provided. The referee found that the net proceeds of the sale, after paying expenses, was $4,107.83; that the amount due on the notes secured by the mortgage was $2,000, and interest thereon from February 7, 1889; that out of the net proceeds of sale there should be paid first to the holder of the notes and mortgage the amount so found due; that as there was default in the payment of the mortgage when the levy was made by the judgment creditor, both by reason of the non-payment of the notes and the entry of the judgment, the mortgagor had no legal interest in the property; and that the receiver was entitled to the balance remaining after payment of the mortgage. The report was confirmed by the court, and the order entered thereon affirmed on appeal by the general term.

We think that the appeal of the judgment creditor cannot be sustained. Though he made the levy three days before the receiver was appointed, yet he took nothing by it for the reason that the defendant in the execution had no interest upon which the lien of the execution could attach. The law seems to be settled in this state that after default the mortgagor has no interest in the mortgaged property that can be sold on execution against him: Hull v. Carnley, 11 N. Y. 502; Hall v. Sampson, 35 N. Y. 274; 91 Am. Dec. 56; Galen v. Brown, 22 N. Y. 37; Manchester v. Tibbetts, 121 N. Y. 223; 18 Am. St. Rep. 816. The event had happened that made the mortgage instantly due, and there was no right of possession in the mortgagor when the levy was made. The condition in the mortgage in regard to notice applies only to the time and place of the sale under the mortgage, and the notice was not necessary in order to perfect the default.

The order should be affirmed, with costs.

EXECUTION, PROPERTY SUBJECT TO. After default, the mortgagor of chattels has no interest in the mortgaged property subject to an execution issued against him: Manchester v. Tibbetts, 121 N. Y. 219; 18 Am. St. Rep. 816, and note.

MOKEE v. DELAWARE AND HUDSON CANAL Co.

[125 NEW YORK, 358.]

RIPARIAN OWNER HAS NO RIGHT TO RETAIN BY MEANS OF A DAM THE WATERS of a natural stream running through his land, and then to discharge them in such quantities into such stream that it is insufficient to carry them, and they therefore overflow the lands of a riparian proprietor below, to his injury.

DAMAGES.

ABSENCE OF MALICE on the part of defendant and his agents will not relieve him from liability for damages occasioned by his or their wrongful acts.

Thornton A. Niven, for the appellant.

T. F. Bush, for the respondent.

O'BRIEN, J. This was an action of an equitable character to restrain the defendant from discharging water upon the plaintiff's land through the means of a dam or reservoir constructed to store water for the use of its canal. The case was tried by the court with the aid of a jury. The plaintiff recovered damages, and the equitable relief claimed was granted, and the general term has sustained the decision. The judg

ment rests on the following facts, found by the trial court: In the year 1851 the plaintiff became the owner and went into the possession of the farm, for the alleged injury to which the damages were recovered. It embraced some thirty or forty acres of low, flat land through which flowed a stream or small brook, about six inches deep and from three to six feet wide. The land on both sides of the stream was marshy, and the plaintiff straightened the course of the stream and made it somewhat wider and deeper, and then by a system of drainage through the flat land and into the stream thus enlarged, the land was reclaimed and became valuable for agricultural purposes. After the land became so improved, the defendant, in the year 1871, constructed its dam and reservoir across this stream on its own land, at a point above the lands of the plaintiff. This dam was used for the purpose of retaining and holding back the water in dry seasons, from which it was discharged through the stream on plaintiff's land into the Neversink River, and from thence into defendant's canal below. The defendant in fact used the brook that ran through the plaintiff's farm as a feeder, through which water was discharged from the dam above into the canal. At certain seasons of the year, during the period of canal navigation, the defendant discharged the water in much larger quantities than would otherwise naturally flow in the stream, and to such an extent that its banks were overflowed, and the ditches constructed by plaintiff to drain the land filled and rendered useless, and the flat land submerged and rendered untillable, and the crops thereon destroyed. To prevent these injuries to plaintiff's land, a perpetual injunction was granted against the use of the stream as a feeder for the canal to discharge water through it in quantities greater than would naturally flow therein.

It was not claimed that the injuries were caused by any want of skill or negligence on defendant's part in the construction of the dam or reservoir, but to the fact that more water was discharged by defendant into the stream than it was capable of carrying off without overflowing the adjoining lands. The defendant had never acquired the right to use this stream for the purpose of conducting water to the canal, by condemnation proceedings or otherwise. The discharge by the defendant of water upon plaintiff's land in the manner found was an injury in the nature of a trespass, for which the plaintiff was entitled to recover his damages, and to restrain in the future by injunction. It is the case of a riparian owner above who has

detained or stored the water of a natural stream, and then discharged it into the stream in such quantities as to overflow the lands and injure the riparian proprietor below. Cases are cited by the defendant, to the effect that where a dam is constructed by legislative authority, the party constructing it is not liable for damages caused by overflow or percolation in its use. That principle has no application to this case. If the plaintiff's land had been damaged by water which percolated or accidentally escaped from this dam without any neglect or fault on the part of the defendant, then these cases would probably apply. But here the defendant intentionally pours water upon the land of an adjoining owner, because the water is discharged into a stream running through his land in such quantities that the channel of the stream cannot carry it away. If it should open its canal at some point, and intentionally overflow adjoining land, causing damage, it would be no answer to a suit by the owner to show that the canal at this point was well and skillfully constructed, and that it was authorized by the legislature. It is quite true that the defendant's agents are not moved by any malice toward the plaintiff or any actual intention to injure him, but still, they perform acts that have that result. In such cases an action will lie at the suit of the injured party: St. Peters v. Denison, 58 N. Y. 416; Noonan v. City of Albany, 79 N. Y. 470; 35 Am. Rep. 540; Sipple v. State, 99 N. Y. 284; Vernum v. Wheeler, 35 Hun, 53; Scriver v. Smith, 100 N. Y. 471; 53 Am. Rep. 224; Silsby Mfg. Co. v. State, 104 N. Y. 562.

The special provision for assessing damages in such cases contained in the defendant's charter (Laws of 1823, c. 238, sec. 10) does not deprive the plaintiff of the remedy by suit at law or in equity.

The judgment should be affirmed, with costs.

RIPARIAN RIGHTS ERECTION OF DAM - OVERFLOWING LANDS BELOW. — A riparian owner cannot erect a dam and then discharge a superabundance of water upon the lands of lower land-owners: Note to McCoy v. Danley, 57 Am. Dec. 686. Compare Witheral v. Muskegon B. Co., 68 Mich. 48; 13 Am. St. Rep. 325, and note; Whitney v. Wheeler Cotton Mills, 151 Mass. 396. But in Brooks v. Cedar Brook etc. Co., 82 Me. 17, 17 Am. St. Rep. 459, it is decided that the injuries suffered by one, through the lawful erection of a dam under legislative authority, whereby the flow of water in a stream running through his land is at times increased, causing the soil to be somewhat worn away, are consequential, and do not entitle him to any redress. See also Grant v. Kuglar, 81 Ga. 637, 12 Am. St. Rep. 348, where the upper propri. etor was held liable for injury caused to the land of the lower owner by rea son of the removal by the former of a natural ledge of rosk in the bed of a stream flowing through the lands of both proprietors.

WILLS.

GREENE V. GREENE.

[125 NEW YORK, 506.]

-IN THE INTERPRETATION OF WILLS, THE INTENTION of the testator, if discoverable and lawful, must be effected.

WHERE THERE IS A DEVISE OF PROPERTY IN TRUST, AND SOME OF THE TRUSTS ARE VALID AND OTHERS ARE NOT, the property vests in the trustees, the legal estate to be applied to the valid trusts only. TRUSTS-PERPETUITIES.—If a testator devises his property to his sons, upon trust, to pay certain legacies, to manage the estate, to render just accounts to one another, and to hold the real property for six years without making any partition thereof, and declares that after that period all the property shall belong to them, but that if any of them shall seek partition within the time designated he shall forfeit his share, the will vests the estate in fee in such sons; and the condition against partition, being unlawful, is inoperative, and therefore does not impair the effect of the devise.

TRUSTS. TO THE CONSTITUTION OF EVERY EXPRESSED TRUST there must be a trustee, an estate to vest in him, and a beneficiary. If property is devised to persons, to hold in trust, for their own benefit, no trust is created, but they take both the legal and equitable estate; for these two estates cannot be separately maintained in the same persons.

WILLS. -TRUst Estate will NEVER BE IMPLIED, WHERE IT WOULD RENDER THE WILL ILLEGAL AND VOID.

Thomas M. Tyng, for the appellant.

Sherman S. Rogers, for the respondents.

GRAY, J. Upon this appeal we are asked to pronounce invalid that disposition by the testator of his residuary estate which was made in favor of three of his sons, the plaintiff, another son, being excluded from any share thereof. As an heir, he brings this action for the partition of the decedent's real property, under section 1537 of the Code of Civil Procedure, and he attacks the devise to his brothers, as being void for offending against the statute of perpetuities.

After specific devises of realty, the testator, in the fifth clause of his will, gave all his residuary estate "unto my three sons, viz., John B. Greene, Harry B. Greene, and Samuel B. Greene, as trustees, to carry out the provisions of this. . . . will, and execute the trusts hereinafter specified." In the following eight clauses, he directed them to pay certain pecuniary legacies, and he constituted two trust funds for the lives of his wife and a sister. The plaintiff received a pecuniary legacy. In the fourteenth clause, testator directed that his "said trustees shall take and hold my said property and estate, and the whole thereof, . . . . for the period of six years from and after my decease; the estate being chargeable