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passage of

said river is frozen over) by person or teams, &c., by reason of the perpendicular sides of said embankment, and otherwise, yet said defendants have not constructed or sustained any passes or roads across said railroad for the persons, cattle, carriages and teams, for the purpose of enabling said plaintiff to farm and manage his said lands, and giving said plaintiff his usual access to the river during the winter, when navigation is stopped and the river frozen over as aforesaid.

And said plaintiff further alleges, that although long prior to said month of May, 1846, and in said month, and from that time up to the time of the completion by the defendants of their railroad, as hereinbefore mentioned, vessels and boats of various kinds, with and without masts, had passed and could pass, and now could (if not prevented by said obstruction) pass into and from said bay to the land of said plaintiff, and although said defendants are required so to do, yet the said defendants have not constructed such bridge or bridges as are necessary to provide for the free passage of such vessels and boats as heretofore have or now can pass into and from the same to said bay, which is crossed by said railroad as aforesaid, to the great damage of said plaintiff.

And said plaintiff alleges, that the said defendants have not in any manner made him any compensation, on account or by reason of the matters and things herein stated, nor made any agreement with him in relation thereto, nor derived any right in reference thereto, or to the property herein mentioned, by gift or purchase ; and he further alleges, that they have not taken any steps of any kind to ascertain the compensation to be made therefor to him in the premises, and that no such steps have been taken.

Wherefore said plaintiff demands judgment, that said defendants may be ordered and adjudged by the judgment of this court to construct, at their own expense, and maintain convenient passes or roads across said railroad, as is required by the sixteenth section of said act, for the passage of persons, cattle, carriages and teams, for the purpose of farming or managing such lands and giving to them their usual access to the river; and that said defendants

may

be further ordered and adjudged by the judgment of this court to construct, forthwith, such a bridge as is required by the provisions of said fifteenth section of said act; and that said defendants may pay to said plaintiff his damages, by him sustained in consequence of said acts, in the sum of $5,000.

And that the said plaintiff may have such other and further relief in the premises as the nature of his said case may require, besides the costs of this action.

G. C. & E. J. GENET,

Plaintiff's Attorneys.

(4.) INJUNCTIONS TO RESTRAIN COMMISSION OF WRONGFUL Act.

(No. 14.)

By a landlord against a lessee for years, to restrain waste

and compel him to put the premises in good condition.

Title of the Cause.

The plaintiff complaining of the defendant, alleges the following facts as his cause of action : That before and at the time of making the indenture, hereinafter mentioned, he was seized in fee simple, in his own right, of the following lands and tenements: (Describing them.]

That being so seized, by a certain indenture, bearing date the, &c., and made between the plaintiff of the one day of

part, and said defendant of the other part, he, the said plaintiff, did demise, lease and to farm let, unto the said defendant, his executors, administrators and assigns, the above described premises, to hold the same, with the appurtenances, unto the said defendant, his executors, administrators and assigns, from the — for the term of — years, at the yearly rent of $—

That said defendant did, in and by said indenture, for himself, his heirs, executors, administrators and assigns, covenant, promise and agree with the plaintiff, his heirs, executors, administrators and assigns, that he would, during the said term, keep the said premises in good repair, and manage and cultivate the said farm and lands in proper and husband-like manner, according to the custom of the country, as by the said indenture of lease, reference being thereunto had, will more fully appear.

That said defendant, under and by virtue of said indenture, entered upon said demised premises, with the appurtenances, and became and was possessed thereof, for the said term, so to him granted by plaintiff, as aforesaid.

That at the time said defendant entered upon the said premises, the same were in good repair and condition; that a portion thereof, containing about — acres, consisted of valuable standing timber, and another portion, containing about

acres, consisted of ancient meadow land, which had so remained for many years, and as long as said lands had been owned by the plaintiff.

That by the mismanagement of the said defendant, the buildings, out-houses, gates, rails and fences on said premises, which were in good and perfect condition when the defendant took possession thereof, have become and are ruinous and bad, and by the improper cultivation of defendant, the land has become very much deteriorated.

That said defendant has ploughed up said meadow land and committed waste thereon.

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That he has commenced cutting down portions of the timber upon said premises, and threatens to continue cutting the same.

Whereupon the plaintiff demands judgment, that said defendant

may

be compelled to put the said premises into such repair and condition, in every respect, as far as circumstances will permit, as the same were in when he entered upon the same, and may, also, be adjudged to make a reasonable compensation to the plaintiff for all waste done, committed or suffered by him on the said premises, and all damage occasioned thereto, by his mismanagement or neglect; and that he may be adjudged to keep the said premises in good repair and condition during the remainder of his term, and to manage and cultivate said farm in a proper and husband-like manner, according to the custom of the country, and may be restrained from cutting the remainder of the timber upon said premises, and from selling, drawing away or interfering with such timber as has already been cut and still remains upon said premises, and from committing or permitting any further waste or spoil in, on or to said demised premises, or any part thereof; and in the mean time, that a temporary order, restraining said defendant, &c., be granted, or for such further, &c., [as in No. 1].

12

(No. 15.)

For an injunction to restrain defendant from excavating on

his lands adjoining plaintiff's premises, occasioning damages to said premises, and praying account, &c., of such damages.

SUPREME COURT.-COLUMBIA COUNTY.

Frederick Farrand

agt.
Sarouel H. Marshall.

The above named plaintiff complaining, respectfully states to this court, that on the 11th day of April, 1846, the above named defendant was the owner of certain

premises in the city of Hudson, in said county, bounded and described as follows: [Describing the premises.]

That the said defendant, being still the owner of the premises above described, on the 23d day of June, 1846, in conjunction with his wife, conveyed to the plaintiff, by deed of that date, a portion thereof, described as follows: [Describing them.]

And the plaintiff ever since has been, and still is, the owner of the said premises so conveyed to him as aforesaid, and the said defendant is still the owner of the residue of said premises.

That the premises of the plaintiff, above described, are situated upon the summit of a hill, about 70 feet above its base, and are a nearly level tract of land; and that said level tract extends for about 90 feet beyond the western boundary of plaintiff's premises on to the said premises of

1 Altered and adapted from the complaint in Ferrand v. Marshall (21 Barb., 409).

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