Citation Numbers: 93 N.Y.S. 24
Judges: Forbes
Filed Date: 1/18/1905
Status: Precedential
Modified Date: 9/9/2022
This is an action to restrain the diversion of water from a natural stream known as the “Tremperskill,” located near Andes, in the county of Delaware. Aside from the fact of the amount of water which could be and was taken from the stream through the outlet, there is very little dispute upon any question of fact. The plaintiff and the defendant'owned farms adjoining. North of the plain
These facts raise but a single question of law. It is undoubtedly true that each riparian owner has the right to a reasonable and proper use of the water of a natural stream. Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643; Pierson v. Speyer, 178 N. Y. 270, 70 N. E. 799. I think, however, that each action must be governed very largely by the facts of the particular case. Townsend v. Bell, 167 N. Y. 462, 60 N. E. 757. An adjoining riparian owner has a right to use water from the creek for farming and domestic purposes, and, probably, where the volume taken is not very considerable, he has the right to lead the water from that creek to his own premises for personal use in irrigation, building fish ponds, and for certain ornamental uses and purposes. One riparian owner has no right to divert the stream, and lessen the volume of water, to the detriment, annoyance, or future disadvantage or injury of the adjoining riparian owner. This proposition is carefully dis
The question now arises whether the defendant has an absolute right to divert any portion of this stream by constructing a new waterway or dike upon his own land, leading the water from the creek to a place opposite the land of the plaintiff, and there using that water in part for commercial purposes; thus enabling him to supply the inhabitants of the village of Andes with ice. These facts seem to be substantially admitted, and are entirely undisputed, upon the evidence in the case. Since its original construction, the defendant admits that the dam has been raised 18 inches, flooding a larger area of land, solely for the purpose of enabling him to take more ice from the pond for commercial purposes. It was admitted upon the trial that an eighth of an acre of land is amply sufficient for the defendant’s private, farm, and domestic-purposes. Is there any difference, in principle whether the stream is diverted and placed in a reservoir, and thence led in pipes to supply the inhabitants of the village of Andes with water ? In either case there is a diversion of the stream. In the case at bar the water in the pond is left to congeal, and then, in that form, is transported to the inhabitants of the village.
I think the case of Penrhyn Slate Co. v. Granville El. L. & P. Co., 84 App. Div. 92, 82 N. Y. Supp. 547, demonstrates clearly that in principle there is no difference. It is there held:
“A riparian owner of land bordering on the stream has no right, as such, to divert a portion of the water of a stream and sell it to a village for the purpose of its municipal water supply.”
It is also there held:
“If he does, a lower riparian owner is entitled to injunctive relief, although the percentage of the stream diverted is so small that the injury inflicted upon the lower riparian owner is very slight.” •
Following Strobel v. Kerr Salt Co., page 323 of 164 N. Y., page 148 of 58 N. E. (51 L. R. A. 687, 79 Am. St. Rep. 643).
The plaintiff is entitled to injunctive relief even though the damages are nominal. Amsterdam Knitting Co. v. Dean, 162 N. Y. 278, 56 N. E. 757. This is based upon the theory that to permit the diversion of the creek and the encroachment upon the plaintiff’s rights might,
There is ample evidence in this case to show that at any time in low water, with the present construction of the outlet from said creek, the whole of the stream can be diverted and carried into the defendant’s pond; and, if the season were an unusually dry one, continuing until winter comes, the defendant might monopolize and use the whole stream, to the injury and disadvantage of the plaintiff. This misfortune ought to be prevented if possible. The plaintiff is entitled to the natural flow of the water of said stream at all times, within the limits suggested, and he should not be deprived of those rights; nor should he be made to take the hazard of permitting the diversion of the stream to ripen into an acquired and permanent right. The plaintiff must therefore have a judgment restraining the defendant from diverting and using said stream, or permitting the same to be diverted and used, for commercial purposes, with damages against the defendant, which are hereby assessed at $100, bebdes the costs and disbursements of this action.
Judgment is ordered accordingly.'