131 Misc. 514 | N.Y. Sup. Ct. | 1928
Plaintiff’s action is predicated on an unreasonable and unjustifiable interference by defendant, an upper riparian owner, with the rights of plaintiff, a lower riparian owner, in and to the waters of a natural stream known as Peck creek, located in the towns of Caroga and Johnstown, Fulton county. The plaintiff, in his complaint, alleges in substance that from time immemorial the waters of this creek have flowed through the premises which he owns and that since 1916 he has been entitled to such natural flow; that about the year 1911 the Mohawk Hydro-Electric Company, since consolidated with defendant, built a large concrete dam and control works across this creek above plaintiff’s lands, thereby creating a large storage reservoir and that since such consolidation defendant has and does impound, retain and control all the waters of this creek, the watershed adjacent thereto and also the waters of Sprite creek which would not naturally flow into, upon or over plaintiff’s lands, and that defendant discharges the latter waters into Peck creek at its pleasure, at times in unnaturally large quantities and at other times with great diminution of the natural flow, regardless of plaintiff’s rights; and also that defendant, by means of the dam, reservoir and control works, has unreasonably, unlawfully, wrongfully and regardless of the rights of the plaintiff, from the year 1916 to the present time, withheld, retained and prevented the natural flow of the waters of Peck creek to and through the lands of the plaintiff for long and frequent periods of time, and that defendant, by means of the dam, reservoir and control works, has accumulated large quantities of water and that it wrongfully discharges the waters of Sprite creek into Peck creek so that the same flow to and through the lands of plaintiff, all to plaintiff’s great and irreparable damage.
It is significant that there are no allegations in the pleading that the dam, works and reservoir were not built in conformity with the fall of the land upon which the structures were erected, or that they are not adapted to the. size, character and flow of the stream, or that they were improperly built or improperly operated. Neither, are there any facts alleged from which such inferences can be legitimately drawn. It is not averred that the alleged diversion of the waters of Sprite creek into Peck creek have caused the latter creek to overflow and inundate plaintiff’s lands, or that he was caused any legal injury thereby, or any interference with his subservient right to the use of the waters. There is no claim asserted that defendant has unlawfully interfered with the natural current of the creek so as to invade plaintiff’s rights, or that it causes any waste of its waters, or that it has improperly accelerated or retarded the velocity of the stream, or that plaintiff is deprived of any legitimate use thereof heretofore exercised. In fact, there is no allegation anywhere that plaintiff has ever used the waters of this creek or that he ever intends to do so. There is no charge ■ that defendant detains the waters wantonly, maliciously or unnecessarily. Accord ng to the allegat ons of this complaint it must be assumed that the dam was properly constructed. Unquestionably the defendant had an absolute right to construct a dam, reservoir and control works by which the natural flow of the stream would be withheld and detained temperar ly for rightful purposes. Every riparian proprietor is entitled to the natural flow of the water of
Eliminating the conclusions from this pleading, there is no allegation of any fact from which it can be said as a matter of law that the defendant’s use of the waters of the stream is unreasonable. It is apparent that such facts as are set forth are entirely consistent with the defendant’s rights. Nothing essential to plaintiff’s cause of action can be inferred therefrom. A fact essential to a cause of action is not alleged when it is only to be inferred from other facts specifically averred which are not inconsistent with the opposite fact. (Jacobs v. Monaton R. I. Corp., 212 N. Y. 48.) Such phrases as the defendant “ unreasonably, wrongfully, unlawfully and regardless of the rights of plaintiff ’•’ withholds, retains and prevents the natural flow of the waters are not the averments of an issuable fact. Mere general allegations containing the words “ unreasonably,” “ wrongfully ” and “ unlawfully ” are of no value as stating a cause of action. They are merely conclusions or characterizations. Such words can have no broader effect than the allegations of the specific acts on which they rest. A pleader must allege facts and not mere conclusions. A con
By making this motion the defendant admitted all the facts alleged and such inferences as could be fairly drawn from them. It does not, however, as contended by plaintiff, admit any of the conclusions nor does it admit the correctness of any inference drawn by the pleader from the facts alleged. (Greeff v. Equitable Life Assur. Society, 160 N. Y. 19.) In my opinion the amended complaint, like its predecessor, is fatally defective and defendant’s criticism thereof is well founded.
The learned counsel for defendant contends that the court should take judicial notice that Sprite creek does not flow into the defendant’s dam, but that it actually flows into another body of water according to the United States Geological Survey map. Courts will take judicial notice of matters of such general and public notoriety that everyone within the limits of their jurisdiction may fairly be presumed to be acquainted with them. (Brown v. Piper, 91 U. S. 37.) The existence of Sprite creek cannot be judicially noticed, however. It is not of such notoriety as to be known, generally to the people of the State. It is unlike the great rivers and lakes and mountain ranges which are matters of general history or public notoriety. (People ex rel. Adsit v. Allen, 42 N. Y. 378.) The fact that the presiding judge may be acquainted with this creek is not sufficient justification for noticing it judicially. There is a real but elusive line between the judge’s personal knowledge
It may be that plaintiff has a meritorious cause of action. If so, in the interest of justice, he ought to have one more opportunity to state it. Defendant’s motion is granted, with costs, but the plaintiff may have the usual leave to plead anew.