205 A.D. 787 | N.Y. App. Div. | 1923
The action is brought primarily to restrain the defendant from the wrongful use, manipulation and control of waters in Caroga creek to the damage of the plaintiff. The wrongful acts of which the plaintiff chiefly complains, and which, it is alleged and found, the defendant intends to continue, occurred in two periods in 1920, one during January to March inclusive, and one in October.
Plaintiff in 1920 was organized as a consolidation of existing companies. The developments of power and the construction of dams and the plant on Caroga creek were completed before the consolidation. The plaintiff is the owner of and entitled to all the rights of the several companies consolidated; and we shall speak of the developments and constructions as made by the plaintiff without distinction by name of the corporation which at the time did the work.
The record is very long and includes much evidence not material to the real issue in the case; and many questions are introduced which have no importance in deciding the rights of the parties here involved. The decision and findings are fully supported by the evidence. A detailed statement of these findings cannot be made without unduly and unnecessarily extending this opinion. Briefly the important facts established by the evidence and found
A riparian owner having equipped his plant with machinery within the ordinary and reasonable capacity of the stream has a right to have the water flow continuously in its natural course and quantity and to the use of the water without obstruction by an upstream owner. It is true that when a riparian owner has constructed a plant which does not require a quantity of water beyond the ordinary normal flow of the stream, if in periods of drought it is necessary for him to draw down his pond in order to operate his plant, he is permitted to close his gates for such reasonable period as is necessary to restore the requisite head. But such use of the stream must not be wanton and must be for his needs and without unnecessary prejudice to the rights of other riparian owners; a riparian owner may not use the water as he pleases. All riparian owners upon a stream are held to a reasonable use of the water of the stream. The question of reasonableness is usually a question of fact, but where the facts are undisputed and the necessary inference from these facts is that the use is unreasonable, a question of law is presented. (Merritt v. Brinkerhoff, 17 Johns. 306, 320; Clinton v. Myers, 46 N. Y. 511; Strobel v. Kerr Salt Co., 164 id. 303.) The trial court having found that the plaintiff’s development and use of the stream is reasonable and that its operation of its plant was conducted with due regard for the size, character and flow of the stream and for the rights of the other riparian owners thereon, and having found the facts as to the defendant’s conduct as above stated, the inference is unavoidable that defendant’s use and manipulation of the stream was unreasonable and a wanton invasion of plaintiff’s rights. The conduct of the defendant was such that the court was justified in finding that it intended to continue the improper and unnecessary operation of its gates to the prejudice of the plaintiff’s rights. The manner in which defendant did operate its gates was reprehensible and the plaintiff was injured thereby without any adequate redress at law; the plaintiff was entitled to have such wrongful manipulation restrained. (McKee v. D. & H. C. Co., 125 N. Y. 353.)
The terms and conditions of the restraining order sufficiently protect the rights of the defendant. As soon as it shall connect its dam and power with any plant to be operated, it may. apply to the court for a modification of the restraining order and the court can then give to it all those rights in the stream to which as a riparian owner it is entitled.
The defendant was properly denied relief under its counterclaim. No act of the plaintiff has wronged the defendant in its rights, or in its lawful use of the stream, and none of its lands have been overflowed by act of plaintiff.
The judgment should be affirmed, with costs.
Present — H. T. Kellogg, Acting P. J., Van Kirk, Hinman and Hasbrouck, JJ.
Judgment unanimously affirmed, with costs.