243 A.D. 855 | N.Y. App. Div. | 1935
Judgment modified by providing that plaintiffs’ water rights under the Peck durable lease which precede the water rights of appellant do not exceed 293 cubic feet per second, and as modified affirmed, without costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: We are of the opinion that under the terms of the Peck durable lease plaintiffs and their predecessors received no right to use water in excess of an amount sufficient to operate a two-saw mill, that is to say, 293 cubic feet per second. Settle order before Taylor, J., on two days’ notice. All concur, except Thompson, J., who dissents and votes for affirmance. (The judgment fixes the rights of the parties to surplus waters of Oswego river. The order remitted the report to the referee for certain changes.) Present — Sears, P. J., Taylor, Thompson and Crosby, JJ.
