32 N.Y.S. 375 | N.Y. Sup. Ct. | 1895
The defendants, from September to November, 1890, were engaged as contractors with the city of Brooklyn in constructing upon the city’s land an aqueduct in aid of the city’s water supply. The aqueduct crossed a small stream of water, which flowed southerly through the plaintiff’s lands, and upon which the plaintiff had a trout preserve. The preserve consisted of four ponds, constructed by deepening and widening the stream and building dams, and were together about 350 feet in length. The referee found that the water of'said stream was pure, clear, and cool, and well adapted to the breeding and raising of trout, and that in September, 1890, said preserve was stocked with about 600 trout three years old, 500 two. years old, 2,500 one year old, and 3,000 spawns, and was producing a yearly income of $150; that in constructing said aqueduct the defendants fouled and polluted the waters of said stream by discharging therein earth, oil, and other substances, so that when it reached plaintiff’s lands it was unfit for use, and destructive to the health and life of the trout in the preserve; that defendants also diverted the water of said stream from plaintiff’s preserve, and diminished the supply, thus rendering the stream, as it flowed through said preserve, sluggish and unsuitable to raising trout, and that in consequence of the pollution and diversion of said stream the trout in the preserve were made sick, prevented from spawning, and a large number died, and the loss sustained by reason of the aforesaid acts was assessed at the sum of $850. The defendants’ liability for the result of the diversion and pollution of the stream is settled by the case of Covert v. Cranford, 141 N. Y. 521, 36 N. E. 597. In that case the court quotes with approval from Judge Denio’s opinion in Bellinger v. Railroad Co., 23 N. Y. 42, "that the maxim, ‘Aqua currit et debet currere,’ absolutely prohibits all individuals from interfering with the natural flow of water to the prejudice of another riparian owner, upon any pretense, and subjects them to damages at the suit of any party injured, without regard to any question of negligence or want of care.” The finding of the referee as to the diversion of the stream and pollution of the waters has ample support in the evidence. The aqueduct crossed the stream a few hundred feet north of the plaintiff’s property, and intercepted the flow of its water at that point. It was, at that point, about 18 feet deep, and the ground was marshy and full of springs, and to get rid of the water in the aqueduct defendants had two large pumps, which pumped the water