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to the center of the river, subject, however, to the rights of the property owners to the maintenance of the pond. The judgment fixed the rights of the power lot owners and the city, with reference to the streets, bridges, dam, pond, and the various rights and obligations of the parties with respect to the water power and the property connected therewith. It bound the city in all capacities, and fixed the rights and obligations of the parties with reference to the streets, canals, sluiceways, bridges, and appurtenances of the water power property. It also recognized certain land lying alongside the canal as the property of the lot owners, which might be used by them at will in widening the canal, both within and without the street boundaries.

The judgment in fact did more than simply define the rights of the city and the other power lot owners as expressed in the conveyances. It to an extent created new conditions, rights, and obligations. It omitted from the judgment the provision in the partition deed to the effect that River street should be for the common use of the public when the public should assume and maintain the same with the bridges, for the reason, doubtless, that between the time of the execution of the deed and the granting of the decree the village had accepted River street and assumed the obligation to maintain the bridge thereon. There is manifest in the decree the intention to set at rest by mutual agreement all questions as to the relative obligations of the city and the power owners as to the maintenance of the bridges, and to place the rights of the power owners on liberal basis, which would encourage the development of the water power. The provisions of the decree outside of those contained in the conveyances are equally binding upon the parties to the action, all of whom were served with process, and a large proportion of whom appeared by attorneys upon the trial of the action. While search has failed to reveal any trace of the evidence which was introduced upon the trial, it must be assumed that a decree which has remained unappealed from, and has been acquiesced in by all the parties

to the action for upwards of 40 years, was amply justified by the evii dence.

[3] The respondents suggest that, the village and city having built and maintained the bridges over the canal on Lake and Main streets, and over the raceway on River street, for upwards of 60 years, more than 40 of which have elapsed since the entry of the decree, the city is estopped and cannot at this late day question its liability to continue to maintain these bridges. It appears from the evidence that from the time the limits of the village of Ogdensburg were extended, in 1851, to include the portion of the water power property situated on the westerly side of the river, known as Fordsville, down to the time of the incorporation of the city of Ogdensburg in 1868, and from that time to the present, these bridges have been built and maintained by the municipality. This the counsel for the city attributes to the fact that many of the officials of the village and city were the owners of water power property and lax in the enforcement of the obligations of such owners. Even if such were the fact, the prior voluntary maintenance of the bridges could impose no obligation whatever upon the city to continue the favor or furnish a basis for estoppel. It is a well-settled

principle that rights cannot be acquired by prescription as to a public highway against the public. Burbank et al. v. Fay et al., 65 N. Y. 57; Knickerbocker Ice Co. v. Shultz, 116 N. Y. 382, 22 N. E. 564; Fulton L. H. & P. Co. v. State, 200 N. Y. 400, 94 N. E. 199, 37 L. R. A. (N. S.) 307.

[4] There is a further aspect in which the question as to the liability of the power owners to maintain a bridge over the raceway on River street should be considered, even if it be held that the power owners were vested with the obligation to maintain that bridge under the provision of the decree requiring them to maintain bridges "over other waste races, if any,” crossing streets. As before stated, River street was opened by the power owners as a private street through their own property in the development of their power system. Its principal use was apparently by the power owners in connection with their business, and as furnishing convenient access to the railroad station. The travel on the street was not great, and required a not expensive bridge of ordinary width and capacity. The chief line of travel from Lake street to Morristown and other points along the St. Lawrence river remained through Main street, and, for aught that appeared, would so continue. Recently, however, through the action of the state and city, River street has been established as a state highway, and a pavement of brick and concrete is about to be laid along the street, requiring the construction over the raceway of an expensive bridge of sufficient capacity to carry the pavement and to bear the burdens of modern state highway traffic with the proper factor of safety. This change required in the character of the roadway and bridge was certainly not within the contemplation of the parties to the partition deed, or of the power owners and the municipality at the time River street was made a public highway, or at the time the decree was granted, and it would be inequitable and unjust to impose upon the power owners the burden of building and maintaining such a bridge, the necessity for the construction of which was in part brought about by the action of the city itself.

It is elementary that covenants are to be so construed as to carry into effect the intention of the parties, and it is well settled that equity will enforce specific performance only in accordance with the intent of the parties at the time the covenant was made. People v. N. Y. Cent. R. R., 168 N. Y. 194, 61 N. E. 172; Conger v. N. Y., W. S. & B. R. R., 120 N. Y. 29, 23 N. E. 983.

The question as to the liability of the power lot owners to maintain bridges over conduits at other places has not been considered, because of apparent immateriality and the meagerness of the record with reference to them. We conclude, however, that the power lot owners are obligated to maintain the bridges over the canal on Lake and Main streets, and the city to build and maintain the bridge over the raceway on River street.

The order of the Special Term should be modified accordingly, but without costs to either party in this or the lower court. All concur, except HOWARD, J., who dissents.

(88 Misc. Rep. 615)

BLOOMQUIST v. FARSON et al.

SNOW V. SAME.

(Supreme Court, Equity Term, Chautauqua County. January 20, 1915.) 1. CANCELLATION OF INSTRUMENTS (8 45*)—BURDEN OF PROOF-FRAUDULENT

REPRESENTATIONS.

A party, suing in equity to rescind a contract because induced by the fraudulent representations of the other party thereto, need only prove the making of material representations actually false, without proving knowledge by the other party of their falsity.

[Ed. Note.-For other cases, see Cancellation of Instruments, Cent. Dig.

$8 100, 101; Dec, Dig. § 45.* ] 2. FRAUD ($ 9*)-REPRESENTATIONS CONSTITUTING ACTIONABLE FRAUD.

The assertion of material things to be true as though made from actual knowledge, if in fact untrue, are fraudulent representations, supporting an action for fraud.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. $ 8; Dec. Dig. $ 9.* ] 3. PRINCIPAL AND AGENT ($ 171*)_TRANSACTIONS WITII AGENT-FRAUD OF

AGENT-RATIFICATION.

A principal, who receives the benefits of sales made by his agent, is responsible for the agent's fraudulent representations, whether authorized or not.

[Ed. Note.--For other cases, see Principal and Agent, Cent. Dig. $$ 6it 6.55; Dec. Dig. $ 171.*] Actions by Otto Bloomquist and by Wallace L. Snow against John Farson and others. Judgment for plaintiffs.

Arthur C. Wade and Louis L. Thrasher, both of Jamestown, for plaintiffs.

Hawkins, Delafield & Longfellow, of New York City (Adelbert Moot and Helen Z. M. Rodgers, both of Buffalo, of counsel), for defendants.

WHEELER, J. These two actions were tried together, and present substantially the same questions of law, although the facts in the two cases are somewhat different. The transactions .out of which these actions spring were consummated with each plaintiff by and through the same agency and at substantially the same time. The actions were brought in equity to set aside the purchase and exchange of certain bonds, on the ground that the sale was induced by false and fraudulent representations in regard to them.

In November, 1910, the plaintiff Bloomquist purchased of the defendants 10 bonds of the North Sterling irrigation district, of Logan county, Colo., and also 10 bonds of the Greeley-Poudre irrigation district, of Weld county, Colo. At the same time the plaintiff Snow bought of the defendant 8 bonds of the North Sterling district and 8 bonds of the Greeley-Poudre district. These bonds were each of the par

value of $500, and bore interest at the rate of 6 per cent. per annum. In payment of the purchase made by Bloomquist, he transferred 10 bonds of Union Traction Company of Kansas, each of the par value of $1,000, bearing 5 per cent. interest. The difference in *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the agreed price between said bonds was adjusted by Bloomquist paying the defendants the sum of $210.91. Snow, in payment of the bonds purchased by him, transferred to the defendants 8 bonds of the Illinois Traction Company, of the face value of $1,000 each, and adjusted the difference in their agreed value by paying the defendants $2.10. The two plaintiffs were copartners in the furniture business.

The actual negotiations for the sale of these bonds were conducted by a sales agent of the defendant named Warner. The representations inducing the sale of these bonds were of two classes, printed circulars and oral statements made by Mr. Warner. Prior to the sale, several conferences were had with the plaintiffs, in some of which both plaintiffs were present, while in others each plaintiff took part in the absence of the other. In the circular describing the North Sterling district and the issue of bonds in connection therewith, it was 1: "It embraces over 80,000 acres in Logan county, Colorado.Under the heading "Value of Land" it was stated : "The bonded debt per acre is about $25—this issue of bonds." Under the heading “Ownership of Land” it was stated: "The land is not owned by large companies or in large tracts. On the contrary, it is largely held by well-to-do people of Sterling and Denver, who own the land in tracts averaging 160 acres."

Warner stated to the plaintiffs that the North Sterling irrigation district covered about 80,000 acres of valuable lands; that the irrigation works were completed, and the water would be turned on the following spring; that the bonded indebtedness represented about $25 an acre; that the taxes to meet the interest charges were to be collected by the county treasurer, the same as other taxes—compared it to a school tax in this state, and said there could be no chance of their getting out of it any more than they could get out of a school tax; that the land was owned by people in small parcels averaging about 160 acres, and that the bonds were a lien ahead of anything else; that there had never been a default in Colorado irrigation bonds, and that one of the defendants had made a personal inspection of it, and that as soon as the land had water it would be worth from $125 to $250 per acre.

It would appear that Mr. Warner's instructions and points as to the sale of these bonds were obtained from a Mr. Cunningham, connected with the defendants' office, and from statements contained in the printed circular. Warner further stated the taxes were in the hands of the county treasurer for the payment of the coupons to fall due the succeeding spring. As matter of fact, the representations made as to the Nor Sterling district were false and untrue in these particulars: Instead of there being 80,000 acres of land, there was only about 54,000 acres. Of this about 40,000 acres is what is called "deeded land” (the estimate varies), and the balance was what is called "government land.” By "deeded land” is meant lands for which the holders had received conveyances of the title. Then there were homestead entries, where, under section 2289 of the Revised Statutes of the United States, applicants have entered upon a homestead of 160 acres, and which may ripen into title; but, to accomplish this, the homesteader must reside upon such lands and cultivate them for a period of five years.

In addition to these classes are what are termed "desert entries,” where lands are acquired by application to the government for an amount of land not exceeding 320 acres, upon which a payment of 25 cents an acre must be made at the time of the application. Evidence must be produced, also, of an intention to reclaim the tract by irrigation, and the source of supply must be pointed out. Then for a period of three years the occupant must provide for reclamation of such lands at the rate of at least $1 per acre. Upon proof of compliance with these conditions, and an additional payment to the government, a patent will issue giving title. So that, in neither of the latter cases, does the occupant get title until there has been a full compliance with the provisions of the statute.

Instead of there being 80,000 acres in the North Sterling district, there was only about 54,000 acres, of which only about 40,000 acres were owned by occupants, and the balance was not subject to any irrigation tax so long as the title remained in the government. The irrigation system was not, in fact, fully completed; the dam was not entirely finished, nor were the railroad bridges constructed; and the water, as matter of fact, was not turned into the reservoir until March, 1912. The system was not completed in other districts, although the work was nearly completed. Instead of the bonded indebtedness being about $25 per acre, on the basis of an acreage of say 44,000 acres, it was nearly $50 an acre. Instead of the land being owned in small parcels, it appeared that 50 people, at the outside, owned the land in the district, outside of that owned by the government, averaging about 880 acres apiece. The county treasurer had not, in fact, received, by way of taxes, money to meet the interest charges on the bonds as stated, but the company constructing the irrigation system had paid the money to pay the coupons.

As to the Greeley-Poudre irrigation district bonds, it was stated in the printed circulars:

"The Greeley-Poudre irrigation district adds 125,000 acres to this magnificent empire.

The new district embraces 125,000 acres adjacent to the old irrigated Greeley district.”

Warner represented to the plaintiffs that the irrigation system of the Greeley-Poudre was completed, and the water would be turned on in the following spring (1911), and the interest there was to be collected and paid by the county treasurer, the same as in the North Sterling district; that the tax had been levied and collected to pay the coupons in June and December, 1911. He stated the work was substantially or practically done; that there was a tunnel going through a mountain, where they were going to get an absolutely sure water supply.

As matter of fact, the evidence shows that, instead of the district having 125,000 acres, it contains about 77,000 acres of deeded land; that, instead of the irrigation system being nearly completed, only about 60 per cent. of the work had been done. It never has been finished, and no water has ever been turned on. The district never has completed

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