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.1

SUPREME COURT.-COLUMBIA COUNTY.

Frederick Farrand

agt.

Samuel 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).

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 other purpose.

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