Rothery v. New York Rubber Co. , 31 N.Y. Sup. Ct. 172 ( 1881 )

Gilbert, J.:

The rules of law governing this class of eases are perfectly well settled. The defendants had no right to erect their dam to such a height as to set the water back upon the plaintiffs mill so as to materially interfere with the running thereof. Such a dam is a nuisance, and a court may grant relief to the party injured by granting an injunction restraining the continuance of the nuisance, or by ordering the dam to be lowered to such a height as will abate the nuisance. (Mann v. Wilkinson, 2 Sum., 276; Farnam v. Blackstone Carnal Co., 1 id., 46; Pixley v. Clark, 35 N. Y., 521; Corning and others v. The Troy, etc., Nail Factory, 40 id., 192.)

A decree ordering the defendants within a specified time to lower a dam to a prescribed height, and an injunction restraining them against continuing the dam above such a height after that time, accomplish precisely the same result. There can be no question of the jurisdiction of the court to grant relief in either mode.

With respect to the extent of the relief granted, the necessity of it is wholly a question of fact. There is abundant evidence to sustain the finding of the court below, that the defendants erected their dam fifteen inches higher than they had a legal right to do. Nor am I able to discover any error in the rejection of the eighth, ninth, tenth and eleventh findings which the defendants proposed. The fact that the dam set the water back upon the plaintiffs’ premises from twelve to fifteen inches, was satisfactorily proved. Ocular demonstration is entitled to more weight than theory or argument. The facts contained in those proposed findings being contradictory of the evidence referred to, such proposed findings were properly rejected for that reason alone, for the court is not required to find a fact unless it has been established by uncontradicted evidence. (Beck v. Sheldon, 48 N. Y., 369.)

I think that five per cent on the amount of the recovery was the utmost extra allowance which the court was authorized to make. The subject-matters involved in the action were the nuisance and the damages caused thereby, not the plaintiffs’ property. (Atlantic Dock Co. v. Libby, 45 N. Y., 499; The People v. New York and Staten Island Ferry Co., 68 id., 72.) The item of ninety-four dollars in the bill of costs was improperly allowed. (Haynes v. Mosher, 15 How. Pr., 216; Hanel v. Baare, 9 Bosw., 682; Provost v. Farrell, 13 Hun, 303; Code of Civil Procedure, § 3256.)

The order appealed from should be reversed and the motion granted, with ten dollars costs of the motion and ten dollars costs of the appeal from the order.

The judgment should be modified by reducing the costs accordingly, and as so modified it should be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment modified by reducing the costs ninety-four dollars, and as modified affirmed, with costs. Order granting allowance reversed, with ten dollars costs of appeal, and ten dollars costs of motion.