36 N.Y.S. 164 | N.Y. Sup. Ct. | 1895
This action was prosecuted by the plaintiffs to recover damages for an alleged flooding of plaintiffs’ land, and to have the raising of a dam on defendant’s premises, by which the alleged flooding was produced, adjudged and declared a nuisance. The complaint alleged that the plaintiffs were the owners of certain lands, situate in Saratoga county, through and along which flowed a stream of water, known as “Anthony’s Kill”; that below the premises of the plaintiffs the defendant owned and occupied land on either side of said stream, and erected or maintained a dam across-said stream, by and in consequence of which the water of the stream was obstructed in its natural flow, and set back upon the lands of the plaintiffs, and thereby flooded and drowned out 10 acres of plaintiffs’ land to such an extent that it became and was wholly valueless, and by-reason of which the plaintiffs sustained large damages. The answer admits plaintiffs’ title to their premises and the existence of the stream o„f water, that the defendant owned land located below that of the plaintiffs on said stream, and the existence and maintenance of a dam across said stream, but denies that in the year 1884, or at any other time, he raised the dam so as to flood or drown out the 10 acres of plaintiffs’ land, or any portion of the same, or that he unlawfully, or otherwise, flooded the plaintiffs’ land. • For a separate answer the defendant alleges that he purchased and became the owner in fee simple of the land and premises occupied by him, on both sides of Anthony’s Kill, December 30, 1881, and that,. 30 years prior thereto, the dam in question had been built across said stream, and had been maintained during all that time at the height at which it was at the time of the alleged injury to the plaintiffs, and alleges and avers that the said cause of action did not accrue within 20 years next before the commencement of the action. The issues came on to be tried at the Saratoga October circuit.
It will be observed, from reading this evidence, that there was, on the trial, a well-defined and sharp conflict of fact between the testimony on the part of the plaintiffs and that on the part of the defendant. There seems to have been abundant evidence on the part of the plaintiffs, standing alone, from which the jury would have been clearly authorized to find in favor of the plaintiffs, upon the two important questions: (1) As to the raising of the dam; (2) as to the injurious effect to plaintiffs’ land of the water set back by the dam. And that seemed to have been the view entertained by the learned judge at the conclusion of the plaintiffs’ testimony, when he refused the defendant’s motion to dismiss the complaint. It may
“If, in any view of the evidence, a verdict might have been rendered for the plaintiff, or if there were questions of fact which might have been determined for the plaintiff, and which, if determined in his favor, would have entitled him to recover, the case should not have been taken from the jury”; citing Sheridan v. Railroad Co., 36 N. Y. 39; Colt v. Railroad Co., 49 N. Y. 671; Train v. Insurance Co., 62 N. Y. 598.
Applying that rule to this case, it follows that if the jury had found, in accordance with plaintiffs’ testimony, that defendant had raised the dam, and that by so raising it the water was forced back upon it, or percolated the soil of the plaintiffs, so as to produce injury to their lands, then the plaintiffs would have been entitled to a judgment for such injury, and for the other relief demanded in the complaint.
It is insisted by the learned counsel for the respondent, in his brief, that the rule of the common law has some application to this case, as laid down in Rice, Ev. p. 1120, from which he quotes as follows:
“It is a maxim of the common law that the owner of the soil has absolute dominion over the same, indefinitely, above and below the surface, and that whatever damages to others he may occasion by his rightful command over his own soil is damnum absque injuria.”
But it is difficult to see how that maxim can be applied to this case, so long as the word “rightful” constitutes a part of the maxim. For it cannot be contended, with any support of law or reason, that a man owning land through which a stream runs may obstruct the natural flow of that stream, or divert it, to the injury of riparian owners, either above or below such owner on the line of the stream; and the rule has been too long and too well settled to admit of a doubt that the riparian owner upon whose land water is set back by a dam constructed by a riparian owner further down upon the stream is without remedy. In Hammond v. Fuller, 1 Paige, 197, it -was held, where a party, by erecting a dam, raises the stream of water above
“A grant is presumed from 20 years’ uninterrupted use of water at a certain height, and if for 20 years the defendants have raised their water but 5 feet, and afterwards raised it 6 feet by the same dam, and the additional foot injures the plaintiffs, they are entitled to damages.”
In Russell v. Scott, 9 Cow. 279, it was held that:
“The erection of a milldam on one’s own land, and flowing a neighbor’s land for more than 20 years uninterruptedly, bars all right of action in the neighbor, but only for the dam as it stood. If it be raised, and the flow increased, the action lies.”
We are inclined to think that it was also a question of fact for the jury, under the evidence in this case, to determine whether or not there was a prescriptive right to flush boards on this dam. The evidence upon that subject does not show such a continuance and uninterrupted use of flush boards as would raise, by implication, a prescriptive right in law, unless it be found that that right was acquired by constant and uninterrupted use of flush boards. Whether it was or was not, it seems to us, is a question of fact for the jury.
It is insisted by the learned counsel for the appellants that the court erred in rejecting the testimony offered by witness Abel, who owned land on this stream next above the land of the defendant. The defendant had proved the use of flush boards under former owners, Hicks and Stevenson. The plaintiffs called Abel to prove that, when Hicks and Stevenson used flush boards, they paid for the right. That evidence, we think, was competent to be submitted to the jury, as bearing upon the uninterrupted prescriptive right of the defendant to use flush boards on his dam, and it was error for the learned judge to exclude it.
■ At the conclusion of the trial, the plaintiff asked to go to ihe jury upon the disputed question of fact as to the prescriptive light to use flush boards on the dam, and as to the question whether the defendant had raised the dam to the plaintiffs’ injury. This the court refused, and directed a verdict for the defendant. We think this was error, for which the judgment should be reversed.
Judgment reversed, and a new trial ordered, costs to abide the event. All concur.