
    Charlotte Van Buren, Resp’t, v. The Fishkill and Matteawan Water Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    1. Water and water courses—Diversion oe—Damages—Measure oe.
    The supply of water from a stream passing the brick yard of which the plaintiff was the lessee, was cut off by the defendant, which had condemned the stream in proceedings in which the plaintiff was not made a party, the lessor alone being compensated in damages, and erected a dam across it, the plaintiff being compelled to stop her brick works, and in consequence made 1,000,000 bricks less than she otherwise could have made. Held, that in an action for damages the measure was not alone the value of the bricks, but the diminution of the value of the premises for the purpose of the business.
    2. Same—Evidence—Admissibility oe—Other water available.
    Where such diminution is the measure of damages, evidence that plaintiff could with equal facility, and with the same results, have us the water from the Hudson river which bounded tlje yard on the other slue, i» admissible.
    Appeal from a judgment of a circuit court of Dutchess county.
    The" action was brought to recover damages caused by depriving plaintiff, a tenant, in possession of a brick yard, of the full use of a stream of water running near the yard.
    
      H. H. Hustes (O. B. Herrick, of counsel), for app’lt; Samuel K. Phillips (M. A. Fowler, of counsel), for resp’t.
   Barnard, P. J.

The plaintiff was the lessee of one Gurnee, of brick- yard premises, situate in Fishkill, Dutchess county. During the continuance of the lease, the defendant, a corporation for conducting pure and wholesome water to Matteawan and vicinity, condemned a stream of water which in part ran by the premises so held under lease by the plaintiff, and built a dam across it. The plaintiff was-manufacturing brick, and needed the water to moisten the clay, and for various other purposes connected with brick manufacturing. The consequence was that the plaintiff had to stop her works some twenty-five days for want of water. In the condemnation proceedings, the plaintiff was not made a party, but the lessor alone was compensated by the award of the commissioners. The evidence tended to show that about 1,000,000 less brick were manufactured than could have been manufactured, if the water supply had not been diverted by the defendant. Proof was offered to show that the plaintiff could have used the water from the Hudson river which bounds the yard on the west, with equal facility, and with as good results as this water from the stream. This evidence was rejected. The court instructed the jury that the true measure of damages was “ the brick she could not make by reason of stoppage on account of diminution of water; and that value is to be taken at the machine where the water was to be used; the value of the brick she was prevented from making.”

Two questions are thus presented. Must the plaintiff 'adapt the business to changed condition of things by reason of the condemnation, if she can thereby lessen the damage, and was the rule of damages right. Both questions are answered if the rule of damages was wrong. The evidence does not as I read it show any loss of material. The clay was dug out of the bank and lay thus as clay because of a want of water to moisten it. When water comes the clay is pressed into brick and the value of the brick in the green state included the clay. The rule gave the value of the brick and did not deduct the value of the clay. It is manifest that the plaintiff’s injury was in the failure to receive the profits upon 1,000,000 of brick more than she made, but it would not be a just rule which gave her the value of this I, 000,000, brick while the clay remained in the bank and the brick was never made at all. The proper rule as stated by the court of appeals in' a case of this kind, is: “ The diminished rental value of the premises for the purpose of that business during the period of diversion.” Ann Colrick v. Swinburne, 105 N. Y., 503; 8 N. Y. State Rep. 172; Cassidy v. Le Fevre, 45 N. Y., 562; Francis v. Schoelkopf, 53 id., 152.

This rule as to the measure of damages would require the introduction of the evidence offered as to the Hudson river water. If the diminution of rent is the rule, the premises as they are after the diversion of the stream is the subject oi the rent, and that includes the Hudson river water, if as good and as easy to obtain as the diverted stream.

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

Pratt, J., concurs; Dykman, J., not sitting.  