36 N.Y.S. 92 | N.Y. Sup. Ct. | 1895
This is an appeal from a judgment at a special term of this court entered in the office of the clerk of Westchester county on March 5, 1895. The action was commenced on August 22, 1894, and was brought for the purpose of enjoining and restraining the defendant from obstructing the natural flow of a nonnavigable stream of fresh water, known as “Hutchinson Greek,” which runs in a southerly direction through portions of New Rochelle, Pelham, and Eastchester, and from diverting the water from the channel of the stream, excep¿ for such uses on defendant’s premises as are usual and proper for upper riparian owners. The plaintiff also asks judgment for such damages as she can prove were sustained by reason of such alleged obstruction and diversion. The plaintiff and defendant are riparian owners on said river, the defendant being the upper riparian owner. The defendant owns over 14,000 feet on both sides of the stream, while the plaintiff owns 1,000 feet. The plaintiff claims that, in consequence of the erection of these dams, she has been deprived of the use and enjoyment of the natural flow of water in the stream; and she seeks by this action to enjoin the defendant from further interfering with such use and enjoyment, and to recover damages for the loss occasioned thereby. Judgment was rendered for the defendant, dismissing the complaint upon the merits, with costs.
It seems to me plain, from the evidence in this action, that the judgment should have been the other way. The defendant is a waterworks company, organized under the laws of this state for the formation of waterworks companies, for the purpose of supplying water to the village of New Rochelle; and the purpose of these dams was to make the reservoir to hold water for sale to the customers of the defendant. The general rule of law is that the owner, of land through which a stream of water runs has a legal right to the usual and natural flow of the water across his premises, of which he cannot be deprived without his consent or just compensation, subject, of course, to the right of the upper riparian owner to use water for his own domestic purposes. The right to a stream of water is as sacred as the right to the soil over which it flows. It is a part of the freehold, of which no man can be disseised but by lawful judgment of his peers, or by due process of law. Gardner v. Trustees, 2 Johns. Ch. 162; Scriver
We also think the amount of watershed of the two parties to this suit was not material evidence upon the issues in this case, and that its admission was error. The plaintiff was not limited in her use of the water by the fact that the defendant owned more watershed than she did. She was entitled to the beneficial use of all the water that flowed in the stream, except such as was reasonably used by the defendant. The rights of the parties did not at all depend upon the amount of watershed owned by them. The lower riparian owner had a right to all the water that ran in the stream, except such as the defendant had a right to reasonably use for its own purposes.
There are numerous exceptions in this case; but the law seems to be well settled. The plaintiff is not limited in her use of the water as she has been accustomed to use it, but she has a right to bring an action for the impairment of such prospective use as she might reasonably make of the water. It is perfectly plain that here was a material diversion of a stream of water wich would naturally run