43 N.Y.S. 29 | N.Y. App. Div. | 1897
Lead Opinion
The general rule is that a riparian proprietor may insist that the 'stream shall flow to his land in the usual quantity, at its natural place and height. (Gould on Waters, § 204, and cases cited.) An upper proprietor may use the water while it runs over his land, but he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his estate. (3 Kent Com. 439.)
• These general propositions are hardly disputed, but the defendants claim that, inasmuch as the plaintiff has shown only nominal damages and its property has not been perceptibly injured by the erection of the embankment, it is, therefore, not entitled to equitable relief.
In Smith v. City of Rochester (38 Hun, 612; affd., without opinion, 104 N. Y. 674) it was held that the plaintiffs were entitled to an injunction restraining a diversion, even though it occasioned no actual damages to. them. The principle was adopted which was laid down by Judge Story in Webb v. Portland Manufacturing Company (3 Sumn. 189), that where the act' done was such that by its
The same principle was applied in Townsend v. Bell (62 Hun, 306, 311.) (See, also, Gilzinger v. Saugerties Water Co., 66 id. 173; affd., 142 N. Y. 633.)
The doctrine of the Webb case (supra) is adopted in Angell on Watercourses (§ 449); Gould on Waters (§ 513).
“ Equity will interpose, by mandatory injunction, to compel the restoration of running water to its natural channel, when wrongfully diverted therefrom, at the suit of the party whose lands include either the whole or a part of such channel.” (Corning v. Troy Iron & Nail Factory, 40 N. Y. 191.)
Many cases may be cited where the injury complained of related to the quantity of water used by the upper proprietor) and the absence of actual damages was deemed an important-element. They do not apply here. .
Here, in substance, there is a permanent appropriation by the defendants of the main channel of the stream as it- originally ran. The plaintiff has the legal right to have the water run in the channel west of the island and enter its mill pond as it was accustomed to do. It has a right to have that channel .open and unobstructed, and to have the water flow along its part of the island. The turning of the water to the easterly side of the island makes the distance shorter to the plaintiff’s mill pond, and naturally increases the force with which the water enters upon plaintiff’s premises, and affects, unfavorably to the plaintiff, the debris coming down the stream. .True, the plaintiff gets all the water it is entitled to have, but does not receive it from the direction or in the state it naturally would flow. The fact that defendants get more benefit from the diversion than the plaintiff would get from the restoration is no answer to the plaintiff’s right to relief. (Corning v. Troy Iron & Nail Factory, supra.)
The rule laid down in the Webb case (supra) is,'I think, applicable to uphold the decision of the referee.
The judgment should be.affirmed.
All concur, except Landon, J., dissenting.
Dissenting Opinion
(dissenting):
The plaintiff’s damages are nominal; the permanent injury to the 'plaintiff’s freehold is technical and nominal. We should, in view of the great injury to the defendants to result from the injunction, ■apply the maxim de minimis non curat lew, and reverse the judgment, except as to six cents and costs. <■
Judgment affirmed, with costs.
