103 N.Y.S. 822 | N.Y. Sup. Ct. | 1907
The plaintiff states in the complaint that the action is brought “ for the benefit of itself and of all others who are similarly situated and interested in the questions involved herein and who may contribute to the expenses of the same.” ' The plaintiff’s cause of action as alleged may be briefly summarized as follows: The plaintiff owns mills and water rights in the village of Seneca Falls on the Dey race on the north side of Seneca outlet, also called Seneca river, the water for which race is made to flow therein by a wing dam across said stream. Farther up the stream is another dam by means of which a portion of the water of said outlet is run into what is known as the Sackett & Bascom race on the south side, the water from which flows again through tail races into the outlet at points mostly below the wing dam at the head of the Dey race. The complaint alleges that the dam furnishing water for the Sackett & Bascom race was built by the joint efforts and contributions of the owners of hydraulic rights on both sides of the stream at that point, and under an agreement that the waters diverted into the Sackett & Bascom race should in no event exceed one-half the waters of the outlet, and that the
The defendant challenges the right of the plaintiff under the facts stated to maintain an action for himself and other proprietors of water rights injuriously affected by the act complained of.
Section 448 of the Code of Civil Procedure provides that all persons united in interest must be joined as plaintiffs or defendants, except as otherwise prescribed, but also states that “ where the question is one of a common or general interest of many persons * * * one or more may sue * * * for the benefit of all.” But in this respect the defendant urges first that the subject-matter of this action does not involve a question of interest common or general to the owners in severalty of water rights on the Dey race in the sense in which those words are used in section 448, and also that it does not appear that there are “many persons” interested in the question; but as to the interest which the Dey race proprietors, holding their respective lands in severalty, have in common or in general respecting the invasion of their respective rights by the wrongful act of the defendant in cutting off their common source of supply, it would seem to be clear that that interest in the subject-matter of this action
Another ground of demurrer raised by the defendant is the nonjoinder as defendants of the other owners of water rights along the Sackett & Bascom race. It appears from the face of the complaint that there are other proprietors along said race besides the defendant, and it is urged that a judgment compelling the defendant to lower the dam from which the waters are diverted into the Sackett & Bascom race will necessarily lessen the power now usable by all of the proprietors along the said race; but in this respect it does not appear from the complaint that any of the proprietors on the Sackett & Bascom race, other than the defendant, united with the defendant in the act complained of or have contributed to the injury in any way; nor does it appear that these other proprietors claim any rights in the additional water diverted from the Dey race by the alleged wrongful act of the defendant. Upon demurrer it must be assumed that the act of the defendant was wrongful, as alleged, and the court will not presume, in the absence of an allegation to that effect, that the other proprietors along the Sackett & Bascom race are wrongdoers. If these other proprietors should make any claim to a right to the additional water thus diverted into the Sackett & Bascom race, there is a way provided for them ,to come into the action and assert and defend those rights; but under the allegations of the complaint the court cannot assume that they make any pretensions to a right based upon a wrongful act charged against the defendant alone.
The complaint also contains allegations to the effect that owners of water rights farther up the stream than the Sackett & Bascom dam are injuriously affected by the raising of the height of said dam, in that the water is set back in such a way as to interfere and retard the flow of water through their respective tail races; and it would appear that these allegations, as to the upstream proprietors, have been in
Section 446 of the Code says that all persons having an interest in the subject of the action may be joined as plaintiffs, and this section has received very liberal construction regarding injuries to separate parcels of real estate arising out of the same wrongful act (Pom. Code Rem., §§ 116-119, old Nos. 199-202) ; and Mr. Pomeroy, in the work cited (§ 289, old No. 392), says that the test of the right of one to bring an action for himself and others, who have distinct claims but a common interest in the subject of the action, is whether, by reason of that interest in the subject, all of them could have united as plaintiffs in bringing the suit. And although the injury to the Dey race proprietors is caused by the diversion of water from that race into the Sackett & Bascom race in violation of a right alleged to be founded, in part at least, upon agreement and prescription concerning the division of the water in equal shares between those two races, and the right of the upstream proprietors, which is said to be invaded, to have the water flow through their water-wheels with the velocity engendered by the natural grade of its course at those points without being held back by obstructions lower down the stream, does not necessarily depend upon convention or proof of adverse use; nevertheless, the injury to each class consists in the diminution of water pou er and arises out of the one wrongful act of defendant in raising the dam, and both will be relieved from a continuance of the injury by a judgment, which is prayed for, requiring defendant to lower the dam to its former height; so that it would seem possible for a tourt of equity to dispose of the whole matter involved in one action. But if doubt exists as to the right of the plaintiff to bring an action for the upstream proprietors, that question will come up for decision when they or any of them seek to intervene in the action or avail themselves of its benefits. The question is not necessarily involved in the decision of this demurrer, inasmuch as it is not necessary to count them in with the Dey race proprietors in order to make it appear that “ many persons ” are interested. The
The demurrer is overruled, with leave to defendant to plead over on payment of costs.
Demurrer overruled, with leave to defendant to plead over on payment of costs.