
    Ann Colrick, Adm’rx, etc., Resp’t, v. Sarah A. Swinburne, and Ano., Adm’rs, etc., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed May 3, 1887.)
    
    1. Water course—Diversion of—Damages for.
    The proper rule of damages, for the diversion of water of a spring from its natural channel, whereby plaintiff was deprived of its use for his tannery, is the diminished rental of the tannery premises for the purposes of that business during the period of diversion.
    2. Same—Pleading.
    It is not material that the plaintiff did not demand the precise damages-to which he was entitled, or that he mistook the true rule of damages in his complaint, and whore the complaint averred a legal wrong, and a resulting pecuniary injury, it is competent for the court to adjust the recovery upon the true basis.
    3. Same.
    The objection that plaintiff was confined to damages, as specified in his bill of particulars, should have been raised when the objectionable evidence was offered, and the court was not bound to entertain it on the motion for a non-suit.
    4. Statute of limitations—Code Civ. Pro., g 383, sued. 4.
    Such an action is not barred by the three or six years statute of limitations; it concerns a continuing injury.
    5. Same—Inflaming damages.
    If jfiaintiff, by his culpable neglect or inaction, inflamed his damages,, the burden of proving it was upon the defendant.
    Appeal from supreme court, general term, Fourth department.
    Plaintiff’s intestate, in 1868, purchased a tannery, which had been erected in 1810, on a small stream running from a-living stream, about twenty rods distant. It had always' been used as a tannery, and he so continued to use it. ■ Subsequently to the purchase R-. G-. Swinburne bought the land on which the spring was located and, in 1871, boxed it.' up, packing the bulkhead with clay so that no water could, escape except such as passed through a pipe to his barns, and thence to a blind ditch in the highway below the tannery.
    
      Ira Shafer, for app’lts; Palmer, Weed, Kellogg & Smith, for resp’t.
    
      
       Affirming 32 Hun, 644, mem.
      
    
   Andrews, J.

The diversion of the water of the spring from its natural channel, whereby the plaintiff’s intestate was deprived of its use.for his. tannery, was a legal injury,' for which he was entitled to compensation in damages. Arnold v. Foot, 12 Wend., 330; Smith v. Adams, 6 Paige, 435; Clinton v. Myers, 46 N. Y., 511. Whether the use by Swinburne was a reasonable exercise of his right was a. question of fact which has been found against him upon sufficient and competent evidence. Prentice v. Geiger, 74 N. Y., 341. The proper rule of damages, under the circumstances, was the diminished rental value of the tannery premises for the purposes of that business during the period of diversion. The rental value of land is a fact ascertainable with reasonable certainty, and is the basis upon which damages are frequently awarded. Cassidy v. Le Fevre, 45 N. Y., 562; Francis v. Schoelkopf, 53 id., 152. The complaint was sufficiently specific to authorize the recovery of whatever legal damages were recoverable for the wrong. The gravamen of the action was the wrongful diversion whereby the plaintiff was deprived of the use of the water on his premises for the purposes of his business. It is not material that the plaintiff did not demand the precise damages to which he was entitled, or that he mistook the' true rule of damages in his complaint. The complaint averred a legal wrong and a resulting pecuniary injury, and it was competent for the court, under the complaint, to adjust the recovery upon the true basis. It is a sufficient answer to the objection that the plaintiff, by his bill of particulars, was confined to a recovery of damages of the exact nature therein specified; that the objection was not taken until the close of the plaintiff’s proofs, and after the evidence of rental value had been given, without raising any question that it was not competent on the ground of variance from the bill of particulars. This technical objection should have been raised when the evidence was offered, and the court was not bound to entertain it on the motion for a nonsuit.

The action was not barred by the three-years statute of limitations contained in subdivision 4, section 383, Code Civil Procedure. The action was not an action to recover a chattel, or damages for taking, detaining, or injuring personal property. Nor was the action barred by the six-years limitation except as to the damages accrued prior to the six years before the commencement of the action, and the further extension allowed in case of suits by or against executors or administrators. The diversion of the water was a continuing injury, and the wrong was not referable exclusively to the day when the original wrong was committed. Arnold v. Hudson R. R. Co., 55 N. Y., 661; Waggoner v. Jermaine, 3 Denio., 306; Uline v. New York Central and Hudson R. R. Co., 101 N. Y., 98; Bare v. Hoffman, 79 Pa. St., 71; Thayer v. Brooks, 17 Ohio, 489.

The note given by the plaintiff’s intestate, in 1873, to Swinburne, did not raise any presumption that there was then no cause of action for the wrongful diversion of the water. Moreover, it was limited to damages which accrued to that time.

The claim that the plaintiff’s intestate should have constructed a ditch for returning the water to his premises, or have supplied himself with the water from the lake, assumes that he had, or could have procured, the right to go upon the premises of strangers for that purpose, of which there is no proof. If the plaintiff’s intestate, by his culpable neglect or inaction, inflamed his damages, the burden of proving it was upon the defendant. There is no evidence upon which such a finding could be required or even justified.

The case does not seem to be very meritorious, but we find no error in the record, and the judgment must therefore be affirmed.

All concur.  