83 N.Y. 400 | NY | 1881
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The argument in behalf of the appellant raises no doubt as to the correctness of the judgment rendered by the Supreme Court, or its conformity to well-settled rules of law and equity. The diversion of the water is conceded; the jury have found that it was injurious to the plaintiff; he was, therefore, entitled to damages already sustained. It was continuous and under a claim of right; and to prevent further injury preventive relief was proper, for without it there would be vexatious litigation and multiplicity of suits. (Story's Eq. Jur., vol. 2, § 927;Gardner v. Newburgh, 2 Johns. Ch. 162; Swindon Water-worksCo. v. W. B. Canal Co., 7 Eng. Irish Appeal Cas. [L.R.], 697; Campbell v. Seaman,
The effect and proper construction of the act of 1869 (Laws of 1869, chap. 237) or its amendment (Laws of 1877, chap. 224), conferring upon railroad corporations certain powers to take water, are not before us; for the plaintiff is not shown to have acquired any right thereunder. As the case now stands, no reason is shown why the judgment appealed from should not be affirmed, and that, I think, must be the result of this appeal.
All concur.
Judgment appealed from affirmed, with costs.