
    The New York Rubber Co., App’lt, v. John Rothery et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Watercourse — Diversion—Rights of riparian owners.
    Plaintiff owned lands opposite to defendants’ manufactory and claimed that the latter diverted the stream so that the water which would naturally flow past and over plaintiff’s land was prevented from doing so. The court charged that defendants “have a right to use this stream and to divert it, provided they do not divert it to a material and appreciable degree. * * - If the defendants used this water and left the river behind them sufficiently to enable you to say that what they took away was an immaterial thing, you will find ‘for the defendants. But if you find that the defendants have used the water and diverted it to a degree that has appreciably and materially lessened this stream, you will find a verdict for the plaintiff.” Held, no error.
    Appeal from judgment in favor of defendants, entered upon verdict
    Action to recover $1,000 damages alleged to have been.sustained by plaintiff by reason of the diversion by defendants of the waters of Matteawan creek from passing by said plaintiff’s property. Defendants are file manufacturers, and their factory is on the west side of the creek and has been run there since 1870. Plaintiff’s manufactory is below on the same side of the stream, but in 1880 it purchased two lots opposite defendant’s factory and the injuries claimed affect these lots.
    The complaint sets forth the seizin and ownership of the plaintiff of the lots X and Y; that the centre of the creek forms the boundary line between the plaintiff’s land and the lands of the defendants, opposite and adjoining them; that the defendants maintained a dam across the creek above the plaintiff’s property; that they also have constructed and maintained a file factory further down the creek, and a race or conduit which took the water from above the dam through the lands of the defendants on the northwest side of the creek, thereby diverting the water of the creek from its natural course in front of and upon the plaintiff’s land, without the consent of the plaintiff, by and upon whose land said water would otherwise flow, and that the race was so constructed, maintained and operated that its waters were returned to the creek at a point further down than the land of the plaintiff, thereby diverting the waters of the creek from their natural course upon and over the land of the plaintiff, and preventing the plaintiff from using the waters of the creek, and deriving the ordinary benefits and advantages from the natural flow thereof, which it is entitled to, and would enjoy were it not for the wrongful acts of the defendants, by reason of which the plaintiff has been damaged and the utility and value of its said land has been injured. There was also added an allegation in regard to lot Y, that, notwithstanding the fact that the outlet of said tail-race is nearly opposite the centre of the northwest boundary line thereof, the race and tail-race are so constructed and maintained that the waters of the creek are diverted from their natural course alongside of and upon lot Y, with the results hereinbefore set forth.
    On the former trial the court directed a verdict for defendant, which was reversed by the court of appeals, 107 N. Y, 310; 12 H. Y. State Rep., 53, on the ground that the question whether the defendants materially reduced the stream must be passed on by the jury.
    
      B. F. Lee, A. G. Fox and W H. L. Lee, for app’lt; H. S. JETustis, for resp’ts.
   Dykman, J.

Upon the first trial of this action the complaint of the plaintiff was dismissed, and the judgment entered for the defendant was affirmed by the general term, but reversed by the court of appeals.

There has now been a second trial of the action and a verdict has been rendered for the defendant, and the plaintiff has appealed from the judgment entered upon such verdict.

As we understand the decision of the court of appeals the refusal of the trial judge to submit the case to the jury and the dismissal of the complaint were erroneous because there was evidence in the case which tended “ to show the use made by the defendants of the water in the creek was such that at various times the quantity which would otherwise have flowed past plaintiff’s lots was perceptibly and materially diminished.” And the trial judge evidently understood the decision in the same way, and intended to conduct the trial in obedience thereto.

Upon that question the charge to the jury contained these directions, among others: “The Rotherys have a right to use this stream and to divert it, provided they do not divert it to a material and appreciable degree, and that is the question that you are to decide. If the defendants left enough, if they have left enough, if they have left all that is material and have taken the water to an inappreciable extent, they have done no wrong. It is like the' case of a farmer who has the right to use a stream to water his cattle. He has a right to its use to an extent that is necessary for his business, and these defendants have the right to use this water to run their wheel, provided they do not interfere with the stream to an extent that you can say is both appreciable and material, * * * and it is your duty to say whether the Rotherys at any time within the period covered by this complaint, used the lower dam at a time when but for its use this river would have been lower both appreciable and in a material degree. * * * That, gentlemen, is the case and all the case that goes to you. H the defendants used this water and left the river behind them sufficiently to enable you to say that what they took away was an immaterial thing, you will find for the defendants. But if you find that the defendants have used the water and diverted it to a degree that has appreciably and materially lessened this stream, you will find a verdict for the plaintiff for six cents, there being, as I understand it, no pretence of any damage in the case at all.”

Thus the only question of fact involved in the case was submitted to the jury .upon the principles laid down by the court of appeals, and the verdict was rendered for the defendants.

The question of equitable estoppel was disposed of by the court of appeals, and was not raised upon the second trial.

We find no error in this charge as made or in the refusals to charge as requested.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Pratt, J., concurs.  