
    Elsebra Duesler, Appellant, v. The City of Johnstown, Respondent.
    
      Action in equity, by a riparian owner, to restrain a city from the permanent diversion of water from a sir earn — damages warranting the granting of an injunction.
    
    An owner of an acre of land "bordering on a stream, from which a city has unlawfully diverted water for its water supply, in such quantities as to materially diminish the flow over the owner’s land, may maintain an equitable action to restrain the continuance of such diversion, notwithstanding the fact that she purchased the premises after the diversion had been begun, where the city has not used the water diverted for a sufficient length of time to acquire title thereto by prescription.
    
      The fact that the trial court finds that the value of the plaintiff’s land, and of its use and occupation, is not affected to any appreciable extent by the diversion, and that, if it should continue permanently, the fee value of said lands would not be diminished more than twenty-five dollars, does not warrant the court in denying the plaintiff equitable relief, as in view of the small value of the plaintiff’s land (three hundred and fifty dollars), the damage of twenty-five dollars, or one-fourteentli thereof, is substantial, and, also, as the plaintiff has no adequate remedy at law, it being admitted that the diversion would be continued.
    Landon, J., dissented.
    Appeal by the plaintiff, Elsebra Duesler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 21st day of July, 1897, upon the decision of the court rendered after a trial before the court without a jury at the Fulton Trial Term.
    
      M. D. Murray, for the appellant.
    
      Andrew J. Nellis, for the respondent.
   Putnam, J.:

The plaintiff is the owner of a lot of land in the county of Fulton, consisting of one acre, of the value of from $300 to $500. She . purchased it on July 16, 1896, of one Edick. He obtained title thereto from one Hillebrant on March 5, 1889. Cork Center creek, a natural watercourse, flows by and bounds plaintiff’s said lot on the east. A stream of water called Cold brook is a tributary of, and flows into, Cork Center creek about three miles above plaintiff’s premises.

In 1878 or 1879 the defendant appropriated the waters of Cold brook, and settled with and paid the owners of the property affected by such appropriation, including Hillebrant, who then owned the lot in question. In 1894 the city of Johnstown, for the purpose of obtaining a supply of pure and wholesome water, took proceedings with a view of appropriating the waters of Cork Center creek, near the mill dam of one Frederick, at a point several miles above the plaintiff’s premises, and obtained judgment of condemnation as against said Frederick on the 10th day of March, 1897, subsequent to the commencement of this action. Pending such proceedings, and on July 19, 1895, the water was diverted from Cork Center creek, and thereby the quantity of water flowing in the stream on plaintiff’s said lot was materially diminished.

It is not shown or claimed that any condemnation proceedings have been taken as against the plaintiff or her grantor authorizing the defendant to take the waters of Cork Center creek that were wont to flow through the lot in "question. The diversion of the water, as claimed, was admitted on the trial, and that the city of Johnstown proposed to continue it.

This action was brought to restrain the defendant from diverting the water of said creek from plaintiff’s premises, and for damages. The trial court found that “ the' value of the said lands and the value of the use and occupation thereof are not affected to any appreciable extent by such diversion of the waters of the Cork Center creek, and although such diversion should continue permanently the fee value of the said lands would not be depreciated in a sum exceeding twenty-five dollars ($25),” and concluded: “ First, the plaintiff is not entitled to any equitable relief in this action. Second, the plaintiff has an adequate remedy at law,” and he directed judgment dismissing the complaint on the merits, unless the plaintiff elected to accept the payment of twenty-five dollars from the defendant, and in consideration thereof release her right to have the waters of Cork Center creek flow on her land as they were wont to flow prior to July 19, 1895. Such election and release not being made, judgment was entered dismissing the complaint on the merits, and the plaintiff from such judgment has taken an appeal to this court.

The right to maintain an equitable action to restrain the unlawful diversion of the water of a stream from its natural channel at the suit of a party owning lands on such channel, is well settled. (N. Y. Rubber Co. v. Rothery et al., 107 N. Y. 310 ; Corning v. Troy Iron & Nail Factory, 40 id. 191; Smith et al. v. City of Rochester, 92 id. 463.)

And it has been held that, in order to sustain such an action, it is not necessary to show any actual or perceptible damages. “ It is sufficient to shew a violation of a right. The law will presume some damage in such a case. A fortiori, where the act done is such that, by its repetition or continuance, it may become the foundation or evidence of an adverse right.” (Webb v. The Portland Manufacturing Co., 3 Sumn. 189 ; Smith v. City of Rochester, 38 Hun, 612; 104 N. Y. 674; Townsend v. Bell, 62 Hun, 306 ; 28 Am. & Eng. Ency. of Law, 980; N. Y. R. Co. v. Rothery et al., 132 N. Y. 293.)

The plaintiff, as the owner of land on Cork Center creek, took title to the thread of the stream, and as incident thereto acquired the right to the usufructory enjoyment of the undiminished and undisturbed flow of said stream. (Smith et al. v. City of Rochester, 92 N. Y. 463.) This use was a property right, of which the defendant could not legally deprive her without making due compensation in the manner required by law. The city of Johnstown having acquired no legal right to divert the water of Cork Center creek, and so diminish the supply of water from that source, we are of opinion that the plaintiff was entitled to a judgment restraining such diversion. By the act of the defendant the flow of water on plaintiff’s premises was materially diminished. This diminution did not result from the use of the water in an ordinary, authorized way by an owner of land on the stream above the plaintiff, but was caused by the respondent taking the water for the purpose of carrying it to the city of Johnstown, from which it would never return to the channel of the stream. (See 3 Kent’s Com. *439.)

The fact that plaintiff purchased the land after the diversion of the water had been effected by the defendant, does not prevent the maintaining of her action. The city of Johnstown had not used the water thus diverted for a long enough period to acquire' a right thereto by prescription. (2 Ang. Wat. § 135, and see Townsend v. Bell, supra.)

But the plaintiff’s land was of small value, and the damages resulting from the diversion of the water by the defendant was slight. The trial court found that the value of the land and of the use thereof are not affected to any appreciable extent by the diversion, and if it shall continue permanently, the value of the land would not have depreciated over $25. The majority of the defends ant’s witnesses estimate the value of plaintiff’s lot at from $300 to $350. Assuming its value to be $350, the damages for a permanent diversion of the water, according to the finding of the trial court, are one-fourteenth the value of the land. This, we think, is an appreciable damage. It is true the amount is small, but so is the value of plaintiff’s premises.

Counsel for the respondent calls our attention to Wormser v. Brown (149 N. Y. 163); Gray v. M. R. Co. et al. (128 id. 499, 509); Bassett v. Company (47 N. H. 426), and Crooke v. Flatbush Water W. Co. (27 Hun, 72), which were cases of equitable actions brought to restrain alleged illegal acts of the defendants therein, and in which it was held, under the facts shown in the cases cited, that “ the amount of damage was thus quite material. Unless the court . had found it to be substantial, it could, in the exercise of its discretion, have withheld the injunction and left the plaintiff to his remedy at law. An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right.” These authorities, however, were not cases of actions for the unauthorized diversion of water, in consequence of which the owner is deprived of his usufructory right thereto without due compensation, and, we think, do not have the effect of overruling the authorities to which we have called attention.

We think, under the circumstances shown in this ease, that the doctrine enunciated in N. Y. R. Co. v. Rothery et al. (132 N. Y. 296), that “ the plaintiff’s right to recover nominal damages was substantial, though the quantity of damages was not,” applies.

If we assume, however, that the doctrine stated in Wormser v. Brown (supra) and kindred cases applies to such an action as this, that plaintiff was not entitled to recover unless, she proved that she had sustained substantial damages in consequence of the diversion of water of which she complains, under the circumstances shown in this case, it cannot he held that she did not show substantial damages. It appears that the defendant has materially diminished the water of Cork Center creek from the channel on plaintiff’s land. It is true that her lot is of small value and her damages are slight; but, on the finding of the court' below, her damages for a permanent diversion of the water taken by the defendant, and which it concedes it intends to continue permanently, may be one-fourteenth of the value of her land. We are unable to say that this is not a substantial damage. One owning a lot of inconsiderable value, through which a natural stream flows, is as much entitied to be protected from an unlawful diversion of the water therein, although her damages resulting therefrom are necessarily slight, as is the owner of a more valuable lot who would suffer greater damages from a diversion.

Considering the small value of plaintiff’s land, the amount of damages the trial court held that she may sustain by a permanent diversion of the water of Cork Center creek cannot be said to be not substantial.

We conclude that the wrongful and unlawful taking of the water from Cork Center creek, and depriving the plaintiff of the use thereof without her consent, which is conceded by the defendant, must necessarily be deemed to produce substantial damage to the plaintiff.

The plaintiff seeks to preserve and protect her usufructory right to the water running on her premises in Cork Center creek, her property, which defendant has taken and proposes to continue taking without any legal condemnation proceedings, and without authority of law. Within the meaning of the authorities, she has no adequate remedy at law, and was entitled to the equitable relief she demanded.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

All concurred, except Landon, J., dissenting.

Judgment reversed and a new trial granted, costs to abide the event.  