
    David Parry, Resp’t, v. The Citizens’ Water Works Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Watercourses —Diversion.
    Defendant, a corporation formed under Laws 1873, chap. 737, constructed a reservoir on a stream above plaintiff for the purpose of storing the water and of conducting it in pipes to supply the owners and occupants of other lands, discharging a part only into the stream below plaintiff’s lands. By so doing the water has been lessened in the stream, and the drainage from houses, etc., formerly carried off has accumulated and become offensive. Held, that this constituted a diversion, and that an injunction pendente lite was properly granted.
    Appeal from order granting an injunction.
    
      Bangs, Stetson, Tracy & Macveagh, for app’lt; A. H. F. Seeger, for resp’t.
   Pratt, J.

This is an appeal by defendant from an order made at the Dutchess special term, August 9, 1890, after hearing on the merits, restraining defendant, during the pendency of the action, from using any of the water of Buttermilk Falls Brook in the town of Highlands, in Orange county, for the purpose of supplying water to the village of Highland Falls, on the ground that such use would be a diversion. The defendant is a water works company organized under chap. 737 of the Laws of 1873. Section 3 of that act provides that these companies shall have power “to take and hold real estate for the purpose of their incorporation, and may have, hold and occupy any waters of this state; provided, however, that nothing herein contained shall be deemed to infringe upon any private right which shall not have been the subject of an agreement and lease or purchase by said corporation,” etc.

The defendant does not justify its taking of the water upon the ground of any agreement, lease or purchase from the plaintiff, who is a lower riparian owner on this brook.

The plan of defendant’s works is to store the water of this brook in reservoirs above plaintiff’s land and thence conduct it through its pipes to supply the owners or occupants of lands which do not abut the brook; and to discharge a part thereof into the brook below plaintiff’s lands, and a part thereof is not to be returned to the brook at all. It is, therefore, obvious that a part of the waters of the brook are to be diverted from following in their natural course through plaintiff’s property.

In the absence of any agreement, lease or purchase, defendant’s claim of right to such use of the water must rest solely on the ground that it does not “ infringe upon any private right of the plaintiff; ” and such, we understand to be the defendant’s contention, i. e., that being a riparian owner upon this brook and its tributaries at points above plaintiff’s lands, it has the right thus to divert some of its waters and run a part thereof wholly around and the other part wholly away from the plaintiff’s land. The theory seems to be that it may do this with what it calls the surplus. But what is the surplus ? Obviously it does not depend upon the present use to which plaintiff has devoted the water of this brook. Non constat his place may be rendered far more valuable than it is at present esteemed by use of these waters to their utmost capacity; certainly no man has the right to deprive him of these advantages by diverting them or any material part thereof from his premises.

It should be noted in the first place that defendant does not propose to utilize the water thus taken upon any land of which it is a riparian owner. It proposes to make use of its own lands only for the purpose of storing these waters and leading them away to the lands of others, there to be sold to others who could not otherwise obtain them at all. Hence, it cannot be said that the water thus diverted is to be used upon or for the benefit of defendant’s land. Indeed, it may well be doubted if defendant would have any power to make use of the water, even on its own lands, except for fairly incidental purposes.

This view of the case, as it seems to us, fully justified the learned judge at special term in holding that the purposed use of the water was a diversion within the legal meaning of that term as applied to riparian rights. We think this view fully sustained by the reasoning of Danforth, J., in Garwood v. N. Y. C. & H. R. R. R. Co., 83 N. Y., 405-6.

The defendant, if a natural person, might use the water of this stream to a reasonable extent on its own land abutting the stream, for irrigation, or domestic, or even manufacturing purposes; and the fact that somé of it was thus permanently lost to the stream would not be regarded as diversion provided it was not material to the lower riparian owner. But how can such diversion be held immaterial in this case where it is plainly regarded by this company and the town authorities of this village as sufficient for the permanent establishment of a business, and a reasonable water supply for a “ thickly settled hamlet? ” More than this, the waters of this stream, in their natural flow, seem to have been hitherto sufficient to carry away the drainage which naturally settled into it from houses, stables, etc., when, as it now seems, that the accumulations from this cause are' becoming offensive. Again, the waters of the brook seem to have been hitherto sufficient to enable plaintiff to run a hydraulic ram, by which he supplied his own premises with water from the brook; and defendant’s affidavit indicates that the ram has ceased to force water by reason of insufficient supply.

It is not to the purpose to say that the plaintiff’s dam is insufficient. Such an appliance may be and often is made to work successfully by merely turning the nose of a supply pipe into a pool in a brook without any dam at all.

Defendant certainly has no right to predicate any property in these waters upon the fact that plaintiff has built a dam to aid in operating his ram.

It should be observed that the mere storage of water in reservoirs by means of dams is not per se an unreasonable use of the water of a stream by an upper riparian owner. Indeed, it would require a very strong case of such use of water to constitute diversion, even though there might be some temporary obstruction while the reservoir was being filled. • The trouble here is not from that cause. It lies rather in the tendency of the" defendant’s use of the waters of this stream, which have been already felt by plaintiff. Hence, since the use of the water by defendant is not within the limitations of its riparian proprietor’s life, it follows that that use is a wrong. It is a wrong which has already resulted in inconvenience and some injury to plaintiff. ' The success of defendant’s business scheme will inevitably increase that injury. Its extent is something which we cannot foresee. The chief trouble is that it cannot be measured with accuracy either by hindsight or foresight. It will be a continuing injury, hence a multiplicity of suits will result before redress can be given.

It is, therefore, plain upon the points submitted that plaintiff’s bill was properly filed for preventive relief, and hence that the injunction was justified, at least until the court by means of a trial could more carefully inquire into the extent of the injury, and either permanently restrain the diversion or prescribe some conditions which will protect plaintiff against future injury.

The order appealed from should, therefore, be affirmed, with costs and disbursements of this appeal to the plaintiff.

Dykman, J., concurs; Barnard, P. J., not sjtting.  