53 N.Y. 11 | NY | 1873
The evidence did not show that the ditches made by the defendant diverted water into the stream upon which the defendant's saw-mill was situated, which had any other outlet than into such creek. Had that been proved, and that the plaintiff sustained an injury from an increased quantity flowing in the stream he would have been entitled to recover therefor. By cutting the ditches through the bluffs the water reached the stream by a shorter and more *13
direct course than it before had done. The defendant's ditches discharged the water into the stream nearly two miles above the plaintiff's mill. They were nearly two miles in length, diverted running water communicated with no stream except at the point where they discharged into the creek upon the land of the defendant. They conducted the surface water from considerable of an area of low swampy land, and in high water discharged into the stream comparatively a large quantity of water, caused the water at such times to rise higher at the defendant's mill than it otherwise would, and to some extent prevented the use of the mill by back water, and at other times reduced the quantity of the water flowing in the stream so that it was not sufficient to operate the machinery. This gave no right of action to the plaintiff. The defendant had an absolute right to drain the surface water upon its land into the stream which was its natural outlet through ditches constructed upon its own land, although the quantity of water in the stream was thereby increased in times of high water, and diminished at other times. (Angel on Water-courses, 6th ed, § 108a to 108s.) The authorities in this country and England upon this subject are collected and revised by the author, and clearly establish the right claimed by the defendant. (Goodale v. Tuttle,
The counsel for the appellant cites Clinton v. Myers
(
The nonsuit was rightly granted, and the judgment of the General Term affirming the judgment entered thereon must be affirmed.
All concur
Judgment affirmed.