
    Frank A. Hall, Appellant, v. George R. Conklin, Respondent.
    Second Department,
    May 6, 1910.
    Real property — conveyance of water rights subsequent to grant of fee — deed — recording acts in Orange county in the year 1803 — water and watercoursés — right of owner to dam stream.
    Where an owner of lands containing a lake which .feeds a stream of water conveys the fee without reserving the right to convey subsequent easements in the flowing water, and no-such easements are visibly imposed at the time of the conveyance, he cannot afterwards convey a right to- draw waters from the lake to another grantee. .
    In the year -1803 -there was no statute requiring conveyances of lands ..in Orange county to be recorded; the act of April 6, 1801, allowing such deeds to be recorded was merely permissive, not mandatory.’ Hence it is immaterial that a deed of lands containing such lake made in 1803 was' not recorded until after' a subsequent grant of an easement in the waters from the lake made in 1811.
    The owner of lands over which a non-navigable stream of water flows is entitled ■ to a reasonable use of the stream, including'a right to dam it, and he is not liable to a lower owner if the size of the dam be suitable to the stream and'the-■use of the water be proper and reasonable.
    Appeal by the plaintiff, Frank, A. Hall, from a' judgment .of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 15th day of June, -1909, upon the decision of the court, rendered after a trial at the_ Orange Special Term, dismissing the complaint.
    During the pendency of the action George E. Conklin died, and Michael 1ST. Kane and A. Y. D. Wallace were appointed his executors: •
    
      George JR. Brewster, for the appellant.
    
      M. N. Kane, for the respondent.
   Jenks, J.:

This is an action for an injunction upon the maintenance of a dam, built in 1906 by the defendant across a stream running through land occupied by him, for the reason that it arrests the free flow of a stream from Mount Basha lake over that land to and over the plaintiff’s land below, and distant four miles from the lake. The plaintiff has a factory on the land wherein he uses water power. The plaintiff contends that the defendant is deprived of the usual riparian rights perforce of a certain grant made to plaintiff’s predecessors in 1811. The grantor was Peter Townsend, and the terms of that grant are: “ All that the right or privilege of using or drawing off the water from a certain pond called Mount Bashen Pond, situate in the Town of Monroe, in the County of Orange, near the nail manufactory of the said Henry McParlan and others, called the Monroe Works, for the purpose of carrying on the said works, in such quantity as would be sufficient for carrying on and working the furnace situate between said nail manufactory and the said pond, called Southfield Furnace, occupied and owned by the said Peter Townsend and others, and for which purpose said water is now used, and no further or greater quantity; Provided always, that the right so as aforesaid granted to the said Henry McFarlan, his heirs and assigns, of drawing off said water as aforesaid shall cease at all times whenever the said furnace called the Southfield Furnace is in blast or making iron.” In 1893 this very grant was under consideration, when the General Term of this department said: “ The difference between the parties is this: The defendant insists that the grant was made for the use of the nail works only, and that the waters cannot be utilized for any other purpose. It is also claimed by the defendant that the action cannot be maintained because the new factory of the plaintiff is not upon the site of the old nail factory. Contrariwise the plaintiff claims that he is not restricted to the use of the water for a nail factory, but is entitled to use the same quantity of water for any purpose upon any part of his premises. The dispute must be settled by the terms of the grant and the law applicable thereto.” It was then decided that the limitation was a measure of quantity and not of purpose, and that, therefore, the plaintiff as grantee could use like quantity in his business. (Hall v. Sterling Iron & Railway Co., 74 Hun, 10 ; affd., 148 N. Y. 432.)

That action, however, was against a different party, and I cannot find that an essential question in this case was either presented or involved. The defendant read in the evidence a deed, executed by the said Peter Townsend in 1803 to Charles Webb, whereby lie conveyed 362 acres of land, which included virtually all of the .land now occupied by this defendant. There is no contention " that the plaintiff has any grant of these lands. I cannot find that the conveyance of 1803- makes the lands' thereby conveyed in any way servient to the uninterrupted flow of water, or subjects them to any easement with respect to the-water tobe drawn from Mount Basha lake, or that the watercourse is excluded from the conveyance, or that in any way the use of any water thereon is limited therein, or. ' the use of the flowing water is in any way separated thereby from the land and the riparian rights. While the water could be the subject of a grant (Washb. Ease. 10), Peter Townsend, after he conveyed the land in 1803, had no right without reservation to convey any right of clear flow in that land by a deed executed in 1811. (Burr v. Mills, 21 Wend. 290.) Such a right must have been reserved or visibly imposed on the premises at the time of the conveyance. (Farnham Waters and Water Rights, 2383.) The point is made that the deed of 1803 was not recorded until many years subsequent to the grant of 1811. But it does not appear that there "was any act in existence in- 1803' that required the record of such' deed. The statute of 1801, passed April sixth, invoked by the learned counsel for the appellant, provides that every deed, conveyance or writing relating to the title or property of lands or real estate within this State and being duly acknowledged or proved as therein prescribed “ shall and may be recorded in the office of the secretary of this State or of the clerk "of the county in which such lands or real estate are situated.” " This- expression is not necessarily mandatory, but may be permissive. (Suth. Stat. Const. §§ 460, 461, 462 et seq.) That it is such as used in this statute is indicated, for section 4 thereof provides that every deed,- conveyance or writing made and executed after February 1, 1799, whereby the right or title to any lands or tenements situated in the several counties of Ontario, Steuben, Tioga, Herkimer, Oneida, Okenango and Otsego may be affected either in law or equity, after being acknowledged or proved as aforesaid, “ shall" be recorded, if the same be not already done,” in the clerk’s office in the counties in, which such lands shall be situated, and thereupon provides: “and that every deed and conveyance made and executed after the said first day of February, whereby any of the said lands may be any way affected in law or equity, shall be adjudged fraudulent and void against any*subsequent bona fide purchaser or mortgagee for valuable consideration, unless the same be recorded as by this act is directed before the recording the deed or conveyance under which such subsequent purchaser or mortgagee shall claim.” This provision is continuous of the. act of 1798 that relates to these counties. This act, then, so far as the county of Orange is concerned, was not mandatory and has no application as if mandatory to deeds made before its enactment. (Varick's Executors v. Briggs, 22 Wend. 543; Beal v. Miller, 1 Hun, 390; Felix v. Devlin, 90 App. Div. 103.) The deed is presumed to have been delivered at its date. (Biglow v. Biglow, 39 App. Div. 103; People v. Snyder, 41 N. Y. 397.) Aside from any rights which the plaintiff may lay claim to by grant in derogation of the defendant’s riparian rights, I fail to see that the defendant has violated any of the natural rights of the plaintiff. He was entitled to a reasonable use of the stream; which included the right to dam it. (Strobel v Kerr Salt Co., 164 N. Y. 303, 320; Pierson v. Speyer, 178 id. 270; Henderson Estate Co. v. Carroll Electric Co., 113 App. Div. 775; affd., 189 N. Y. 531.) The. learned Special Term has found that the defendant’s dam was suitable to the stream, and the use'of the stream thereby made was proper and reasonable, and I see no reason to disturb that finding. The dam is built on a watershed below and outside, of the dam at the lake Defendant’s lake covers about 11 acres and that watershed above it and below that dam consists of about 117 acres. The watershed above the dam on Mount Basha lake is about 2,000 acres and the lake covers about 320 acres. There is proof that the defendant’s lake filled at the time the gate of the Mount Basha dam was closed in a much shorter time than the Mount Basha lake filled.

The judgment is affirmed, with costs

Woodward, Burr, Thomas and Rich, JJ., concurred.

Judgment affirmed, with costs. 
      
       See Revised Acts-of 1801, chap. 155; 1 K. & R. 478, 479.— [Rep.
     
      
       See Laws of 1798, chap. 78.— [Rep.
     