The plaintiff is a riparian owner operating a mill upon Honeoye creek, and has brought this action to restrain the defendant from diverting the waters of Hemlock lake from its natural outlet through Honeoye creek. *Page 216

Hemlock lake is located in Livingston county, about thirty miles from the city of Rochester, and is about seven miles in length with a superficial area of 1,828 acres. Canadice lake is about one-third of the size of Hemlock lake and is located about a mile east therefrom. Under natural conditions Hemlock lake is the main source of supply of Honeoye creek. Prior to the year 1875 the defendant, under a grant from the legislature of the waters of Hemlock lake, constructed a conduit to the lake for the purpose of furnishing the inhabitants of the city with a supply of pure and wholesome water. For a number of years the city has drawn through the conduit 6,700,000 gallons of water per day, and, by reason of its construction and operation, the natural flow of the water from the lake in Honeoye creek has been diminished in that amount. Before the commencement of this action the city commenced the construction of an additional conduit to the lake having a capacity of 15,000,000 gallons per day, for the purpose of furnishing the city with an additional supply of water, and when constructed and put in operation it will largely diminish the flow of water in Honeoye creek. During the year 1877 the city of Rochester erected a bulkhead and gates at the foot of Canadice lake, by means of which the waters can be artificially drawn down about eight feet below the low-water mark, and during the dry portions of the year the water of Canadice lake has been used through the bulkheads and gates for the purpose of maintaining the usual flow of water in the stream.

It is contended on behalf of the appellant that the trial court should have dismissed the plaintiff's complaint for the reason that she had failed to show any pecuniary damage. This question has already received some attention in the courts. In the case ofSmith v. City of Rochester (92 N.Y. 463) an action was brought by a riparian owner similarly situated to the plaintiff in this action, to enjoin the defendant from diverting the waters of the same lake. In that case the trial court held that the city was entitled to the waters under a grant from the state, and that the plaintiffs could not maintain their action. The case came to this court and the judgment *Page 217 was reversed. RUGER, Ch. J., in delivering the opinion of the court, says: "Evidence was given to support the theory that the improvements made by the defendant in the outlets of Canadice and Hemlock lakes furnished a more uniform and constant supply of water to the plaintiff's mills than before existed. It was claimed from this fact that they were, therefore, uninjured by the alleged diversion of water. No express finding upon this issue was made by the court below, and no grounds for its consideration here are now presented. The evidence upon the issue was conflicting, and we have no means of determining the question of fact involved. Upon proceedings being taken to condemn this property by the city of Rochester, such a consideration would have great weight in determining the extent of the injuries to the plaintiff's property, occasioned by an unlawful interference with their water privileges, and it might bear also upon the question of the propriety of an injunction herein, but it is altogether in its present aspect, a question for the consideration of the court below. The evidence in this case tended to show that the plaintiffs were injured by the act of the defendant in diverting the water of Honeoye creek, which had theretofore been accustomed to flow in its channel to the benefit of the mill owners on that stream. This court must assume that some damage occurred to the parties who were illegally deprived of their property. The extent of this injury has not been tried and determined." That case was then sent back for a new trial which took place at the Special Term before Justice RUMSEY. The facts were agreed upon and submitted to the trial judge, from which it appeared that the water flowing through the creek was sufficient for the plaintiffs' use in the propelling of their mills, except during the dry season, and that during the dry weather they had been furnished with a flow of water from Canadice lake by means of the bulkhead and gates with a more uniform supply of water than by the natural flow of water, but it was also agreed that "The defendant's conduit will enable it to draw 9,293,000 gallons per day if the supply at the foot of the lake will hold out, and that the entire natural outflow of Hemlock *Page 218 lake in seasons of low water is not more than two or three million gallons per day; of Canadice lake sometimes less than that, and that the entire body of water in Honeoye creek at the points occupied by the plaintiffs' mills and manufactories at such seasons is sometimes as low as 10,000,000 gallons per day." The trial judge in that case wrote an opinion, in which he discussed the question at some length, as to the right of the plaintiffs to maintain an action of this character in equity for an injunction without showing that they were damaged. He decided the case in favor of the plaintiffs, and this judgment was affirmed in the General Term upon the opinion of the Special Term, one of the members of the court dissenting. (38 Hun, 612.) In this court the judgment was affirmed, without an opinion. (104 N.Y. 674.)

It will be observed that, under the facts agreed upon, it might have been held that the plaintiffs would, in the future, suffer damages during the dry seasons of the year from the abstraction from the lake of an amount of water exceeding its entire daily output, and this court might have affirmed the judgment upon that ground. In view of the remarks occurring in the opinion of RUGER, Ch. J., when the case was first under consideration in this court, and of the fact that the court, in affirming the judgment, did not see fit to place its judgment upon the opinion below, we are inclined to the view that the question may be regarded as still open for consideration in this court. But we do not think it is presented by this record. The court has found as a fact that the bulkhead and gates at Canadice lake are under the control of the defendant, and that unless a supply of water was obtained from Canadice lake the flow of water upon the plaintiff's premises would, during the dry periods of the year, be much less than it was prior to the construction of the first conduit; that by reason of the construction of the conduit the flow of water through the creek has been largely diminished, especially during the dry season of the year, and the plaintiff has been deprived of the use of the water which would otherwise have flowed in the creek upon and over her premises; that upon the completion *Page 219 of the new conduit the flow of water through the creek will, at times during the dry season, be so great as to exceed the entire output of the waters of the creek, and that then plaintiff will not have sufficient water to operate her mill. The supplying of water from Canadice lake is a gratuitous act on the part of the city, and the plaintiff has no legal right to compel its continuance. We think it sufficiently appears from these findings that the plaintiff will suffer damage in the construction and operation of the new conduit, and if so this action can be maintained.

The judgment should, therefore, be affirmed, with costs.

All concur.

Judgment affirmed.