Pratt agt. Hoag. SUPERIOR COURT. PRATT agt. HOAG. The court has no power to order a lis pendens to be taken from the files of the court, which is in proper form, and has been filed in an action in conformity with the provisions of the statute. Although an injunction, which had been granted, and which restrained the defendant from disposing of the real estate sought to be charged by the action, has been dissolved, on the defendant's depositing in court a specific sum of money, as security for the payment of any judgment the plaintiff might recover; the lis pendens will not be ordered to be taken from the files of the court, notwithstanding its continuance may defeat a contract for the sale of the real estate, which the defendant may have made after the injunction was dissolved. A plaintiff may give actual notice of his claim to any person who contemplates purchasing, and he may give such a notice as the statute authorizes. Special Term, Jan., 1856. THE complaint makes a case for an accounting between the parties, in respect to the proceeds of the sales of two houses and lots in the city of New-York, in which they were jointly interested-claims a balance due the plaintiff, and prays for an accounting, &c. It charges that a house and lot, on the Third avenue in NewYork city, was bought, and paid for in part, with such proceeds, and conveyed to the defendant, and seeks to have such house and lot disposed of, if necessary, and proceeds applied to pay such balance as may be adjudged to be due to the plaintiff. An injunction was granted, prohibiting the defendant from disposing of this house and lot, until the further order of the court, and a lis pendens, in proper form, was filed with the clerk of the county. The injunction was dissolved on the 13th of December, 1855, by order of the court, on the defendant's giving security approved by the court, in the sum of $1,600, to account for the proceeds of said Third avenue house and lot. The defendant contracted to sell and convey the house and Pratt agt. Hoag. lot, and the purchaser refused to complete his contract on account of the pendency of this action, and the lis pendens. The defendant now moves for an order, that the lis pendens be taken from the files of the clerk of the city and county of New-York. DAVID P. WHEDON, for defendant, Insisted that the giving of the security, on which the injunction was dissolved, conferred the right to sell the property without any embarrassment to giving a good title, to result from this action, and the proceedings therein; and that the defendant acquired thereby an equitable right to have the lis pendens taken from the files of the clerk of the county. ROBERT H. SHANNON, for plaintiff, Contended that the court had no power to grant the motion. That the security was a substitute for the injunction, and that only. BOSWORTH, Justice. The filing of a lis pendens is an ordinary proceeding in an action, in which it is sought to subject specific real estate to the operation of any judgment that may be recovered. It is indispensable, in order to affect persons who may purchase pendente lite, in ignorance of the plaintiff's claim, that it should be filed. All who take the title after a notice, in proper form, has been filed with the proper officer, take it with the same consequences that would have resulted from a purchase with actual notice. If no injunction had been granted, the filing of a lis pendens would have secured the plaintiff such rights to it in the hands of the purchaser, as might have existed against the defendant if he had continued to own it. If the plaintiff succeeds in establishing that he is, in equity, a part owner, and that full relief cannot be secured except by a sale of it, and payment to himself of such part of the proceeds as may be required to Pratt agt. Hoag. satisfy his just equitable claim, the filing of the lis pendens will enable the plaintiff to obtain the same relief, though the property may have been conveyed pendente lite. Although the lis pendens is an ordinary proceeding, yet it is, in this state, the subject of statutory provisions. (2 R. S. 174, § 48; Code, § 132.) The court has certainly no power to prevent the plaintiff from giving actual notice, if he can, to every person who may propose to purchase. I cannot imagine any principle on which it can prevent him from giving notice in the way the statute has provided. It cannot rightfully interfere, to take from the files of the clerk of the county a paper, in proper form, and regularly filed under the authority of a statute, which is a notice, in law, to all who may purchase. The right also existed to obtain an injunction, on presenting a case which entitled the plaintiff to it. A case was made on which the court deemed it just to grant that relief. The court, subsequently, permitted the defendant to substitute security for the injunction, and, on the security being given, dissolved the injunction. When the court made the order dissolving the injunction, neither the court nor the defendant knew of the lis pendens, although it had been filed months previously thereto. That order, therefore, in contemplation of the court, as in contemplation of law, was security substituted for the injunction, and that only. I think the motion should be denied, on the ground that the court is incompetent to grant the relief sought by it. The motion is denied, with $7 costs. Marshall agt. Peters. SUPREME COURT. EDWIN MARSHALL agt. ISAAC F. PETERS. Where it appears that a plaintiff's grievance, upon which he asks an injunction, is such that he may amply and readily be recompensed by damages, to be recovered in an action at law, an injunction should not be allowed. Neither should the extraordinary powers of the court be exercised by injunction to restrain competition in trade to any extent. The water in a running stream can never become the absolute property of a riparian proprietor, even if he owns both banks, and the stream passes wholly through his lands. All the property that a man can acquire in flowing water is a right to its use. He may have a certain right of property in it, but the water itself is not his property. He must allow the waters to pass out of his lands as they enter them, and his only right is, a right to use them as they flow. Therefore, the ice made from the waters in a mill-pond is not the absolute prop erty of the owner of the mill, so that he could sell or dispose of it, as he could the trees and timber, or the earth and minerals on his farm. Where the owner of a mill, and the land on one side of the centre of the millpond, granted a license to an individual to take ice from that portion of the pond, Held, that the grantee, on complaint that another person was infringing upon his premises by taking and carrying away ice, although he might maintain an action of trespass, was not entitled to an injunction to restrain the taking of the ice. Dutchess Special Term, 1856. MOTION on the part of the defendant to dissolve an injunction-order. The motion is made upon the complaint, answer and affidavits. An injunction-order was, on the 27th of February, 1856, granted by the county judge of Dutchess, "commanding and strictly enjoining the defendant and his agents, laborers and servants, and all others acting in aid or assistance of him, and each and every of them, &c., that he and they, and each of them, do absolutely desist and refrain from entering upon, and from cutting, sawing, gathering, or carrying away the ice from the pond known as the Red-Mills Pond, owned by David B. Marshall agt. Peters. Lent, which ice belongs to the plaintiff, until this court shall have made further order thereupon." Upon the service of this injunction-order, the defendant obtained, from Mr. Justice EMOTT, one of the justices of this court, an order requiring the plaintiff to show cause why the above injunction-order should not be dismissed and vacated. This Red-Mills pond is created by the erection of a dam across the Fall-Kill creek in the city of Poughkeepsie, owned by David B. Lent, which causes the water to overflow the lands on each side of the creek for about half a mile east of the dam. This Fall-Kill creek runs an easterly and westerly course; the farm and lands of Mr. Lent are situate on the north side of the creek, and the deeds to Mr. Lent gives his south boundary "the centre of the creek, and along down the centre of the creek as it winds and turns," &c. The owners of the lands on the south side of the creek have for their north boundaries "the centre of the said creek." The other facts in the case are sufficiently stated in the opinion of the court. Upon showing cause, JOHN THOMPSON & GILBERT DEAN, for plaintiff, Cited the following cases :-3 Paige, 584; 2 Vern. 390; Prec. in Ch. 530; 4 Ves. 428; 4 Edwards R. 545; Angel on Water Courses, 233; 7 Bar. S. C. R. 395; 6 Cow. R. 518; 1 Paige, 447; 13 John. R. 212. LEONARD MAISON & J. F. BARNARD, for defendant, Cited 19 Bar. S. C. R. 371, 378; Voorhies' 2d ed. of Code of 1852, pp. 229, 230, 231, 240, §§ 219, 401, 402. EмOTT, Justice. The plaintiff sets forth in the complaint in this action, that David B. Lent is the owner of the premises known as the Red Mills, in the city of Poughkeepsie, and of the right to maintain the dam upon the Fall-Kill creek at its |