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the defendant, and then the hill slopes westerly, upon the defendant's said premises, down toward the road or highway.
That the plaintiff's said premises being so situated upon said hill, and being about 1,500 feet westerly from the east channel of the Hudson river, and about 80 feet above the line thereof, form a beautiful and eligible site for a residence, and command a fine and extensive view of the said river and the surrounding country, and are of greater value for a place of residence and a building lot than for any
That the plaintiff, immediately after the purchase of said premises so conveyed to him, commenced the improvement thereof, and erected a valuable dwelling and out-houses thereon, and fences along the exterior line thereof, and has brought the said premises to a high state of cultivation, and has a valuable garden thereon; and that the value of the said dwelling-house is at least the sum of two thousand dollars; and the value of the plaintiff's said premises, with the improvements thereon, is at least the sum of four thousand dollars. That the said dwelling-house is a building of about 35 feet front by 24 feet in depth, and is situated near the centre of said premises of plaintiff, and the rear thereof does not approach the western boundary of plaintiff's premises nearer than 102 feet. That the other erections upon said premises (except fences) are a stable, carriage-house and wood-house, of moderate height and weight, extending from the front of said premises, on Second-street, to a point about 140 feet distant from the said western boundary of said premises, and do not approach said western boundary nearer than about that distance; and the said dwellinghouse, and all the other buildings and erections upon said premises, are built of wood. And the plaintiff further says, that said dwelling-house and the other erections upon said premises are so located and constructed as not, by their
superincumbent weight, or otherwise, to disturb the natural coherency of the soil of said premises, nor to increase the natural tendency of the soil to subside or sink down at the western boundary of plaintiff's premises, or within 80 feet therefrom, towards Second-street.
That the premises of the plaintiff aforesaid, forming the summit of the hill as aforesaid, are, as the plaintiff is informed and believes, substantially in the same condition, relatively to the sides, slopes, and base of the said hill (except the excavations on the defendant's said premises), as they were and have been for more than fifty years last past, and for a much longer period; and have been during all that time supported, and are naturally dependent for support and coherency, upon the slopes and base aforesaid, and especially upon the defendant's said premises, and are incapable of sustaining themselves or retaining their natural position if such support is withdrawn.
That northwesterly of the road or highway, on the premises of the defendant above described, and extending across Dock-street, on to other lands occupied by the defendant, the said defendant has, and for a long time has had, a brick yard; and has been, and still is, extensively engaged thereon in the manufacture of brick.
That the said defendant, since the conveyance of said premises to plaintiff, has been, and still is (at the time of the commencement of this action), making excavations, and digging and carrying away earth from said hill, westerly of plaintiff's said premises. That the said excavations on the defendant's said premises have been carried into the said hill toward the plaintiff's premises, and extended nearly the whole distance between Rope and Strawberry alleys, which are the northerly and southerly boundaries of plaintiff's said premises, and have been carried, at some points, to within 4 or 5 feet of plaintiff's premises."
That at a distance of about 32 feet west from the westerly boundary of plaintiff's premises, the cut or excavation is perpendicular, or very nearly so, for about 60 feet in width, and has been carried perpendicular to the depth of over 50 feet from its upper edge, and about 60 feet in depth from the level of the westerly line of plaintiff's premises, as it was at the time of the conveyance to him as aforesaid.
That the said hill is of clay soil, and the said excavations are (at the time of the commencement of this action), and have been made, and the soil of said premises removed, for the sole purpose of manufacturing and converting said soil into brick, upon the said brick yard, and for the purpose of transporting said brick, when thus manufactured, away from said premises and selling the same; and that said excavations and removal of the soil have not been made by the said defendant for the purpose of improving or benefiting the premises on which said excavations are made, nor do they improve or benefit said premises, but on the contrary lessen and diminish the value thereof.
That the said defendant is still pursuing said excavations vigorously, and is continually approaching nearer and nearer the plaintiff's premises. That the effect of said excavations has already been to cause a great portion of the western and northwestern part of the plaintiff's premises to crack, and subside and sink down, and the western and northwestern fences upon said premises to crack and stretch apart; and the damages arising therefrom increasing daily.
That if said excavations are longer pursued, the plaintiff's premises will cave in and fall away, and a great portion of the soil thereof will subside and fall over into the pit made by said excavations, and the dwelling-house will be in great danger of having its foundations undermined, and of tumbling down, and not only the beauty and eligibility of the location impaired, but the value of the premises and improvements thereon lost and destroyed.
And the plaintiff further states, that it is impossible for him to protect his said premises, or to guard against or prevent such result, if the said excavations are pursued; and that the said defendant has not, in any manner, propped up or supported the plaintiff's premises, but has wholly omitted and neglected so to do.
And the plaintiff further states, that the said defendant intends, as this plaintiff is informed and believes, to carry on the said excavations up to the line or boundary of plaintiff's premises.
And he further states, that on the 21st day of May, 1853, the said defendant served, or caused to be served, upon the plaintiff, a notice to that effect, a copy of which is hereto annexed, marked A.
And the plaintiff further says, that at the time of receiving the aforesaid conveyance from the defendant, in 1846, he was entirely ignorant that the defendant's premises had been used for any considerable number of years as a brick yard, or for the purpose of excavating earth or clay for the making of brick.
And the plaintiff further says, that said excavations were carried on upon the defendant's premises for å considerable time after the conveyance to him, the said plaintiff, as aforesaid, before the plaintiff discovered any injurious effects therefrom to his said premises. But the plaintiff, anticipating ultimate danger therefrom, long ago, and repeatedly since the said conveyance to him, requested the defendant to desist from prosecuting the said excavations further, and threatened proceedings against him to compel him so to desist; but the defendant has always neglected and refused so to do, and still neglects and refuses.
And the plaintiff further states, that the defendant is the owner of a track of land, situate a short distance from the defendant's premises, above described, and about 350 yards from the brick yard of the defendant, above mentioned; which track contains twelve acres or more of land, and is mostly of clay soil, and of as good quality for making brick as the soil of the defendant's premises above described, where excavations have been made, as aforesaid, and that the said land is convenient and easy of access for getting clay, and that a sufficient supply of clay, for the defendant's said brick yard, can be obtained from said tract of land, for at least fifty years to come, without interfering with, or endangering, or injuring the lands adjoining the defendant's said tract.
Wherefore the plaintiff demands, that the defendant may be enjoined and commanded, by an order of this court, in the nature of an injunction, to cease and desist from digging and excavating in or upon his premises, above described, for the purpose of obtaining clay or earth to manufacture brick, and that he be commanded and enjoined not to dig or excavate, for the said purpose, in or upon the said premises.
And the plaintiff also prays that the said injunction, not to dig or excavate for the said purpose, be made perpetual; and for an account of and compensation for the damage already sustained by the plaintiff, from the defendant's excavations and wrongful acts aforesaid; and for the costs of this action; and for such further or for such other relief as this court may deem meet and proper in the premises. HOGEBOOM, PORTER & BOIES,