
    (69 Hun, 59.)
    NEW YORK RUBBER CO. v. ROTHERY et al.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    Obstruction of Water Course—Question for Jury.
    In an action to recover damages for the alleged diversion of a natural stream, it is for the jury to say whether defendants, by the erection of a dam, have materially diminished the natural flow of water from its channel in front of plaintiff’s land.
    Appeal from circuit court, Dutchess county.
    • Action by the New York Rubber Company against John Rothery and William Rothery to recover damages for the alleged diversion of the waters of a natural stream. From a judgment for defendants, entered on a verdict, and from an order denying a motion for a new trial, plaintiff appeals.
    Affirmed.
    For former reports, see 10 N. Y. Supp. 872, 30 N. E. Rep. 841.
    Argued before BARNARD, P. J., and PRATT, J.
    Lee & Lee, (Franklin Bartlett and W. H. L. Lee, of counsel,) for appellant.
    H. H. Hustis, for respondents.
   BARNARD, P. J.

Under the extremely restricted rule applied to this case the verdict of the jury is supported by the evidence. The stream is a large stream, 60 or 70 feet wide. The defendants have a dam some 200 feet wide, just above the point where the defendants take the water for their factory, and the dam for its extreme width overflows each day, in the dryest of times, for its entire length. The stream below the dam at its lowest period is 10 or 12 feet wide, and when the defendants are running their factory, and at the lowest of water, no perceptible diminution is seen in the stream running in its natural bed. The defendants’ wheel is but a 30-inch wheel. Proof which would have legitimately tended to show that the fluctuation in the stream, reducing it from a 60-foot width to a 10 or 12-foot width, was caused by the ponding of the water of the stream in the great body called “Whaley Pond,” and in and by the numerous large ponds between that great reservoir and the defendants’ dam, was excluded. With this proof in, the stream would have been a very large stream in the lowest of water.

The judgment should be affirmed, with costs.

PRATT, J.,

(concurring.) If we correctly understand the decisions of the court of appeals, (107 N. Y. 310, 14 N. E. Rep. 269; 132 N. Y. 293, 30 N. E. Rep. 841,) the turning point of this case is this: Have defendants, by their race way, materially and perceptibly diminished the natural flow of the waters of Maatewan creek from their natural channel in front of plaintiff’s two lots, or either of them? We understand that it has also been decided by that court that this question was for the jury. The learned trial judge so held, and refused to direct a verdict for the plaintiff, even for nominal damages. This question was broadly and fairly submitted to the jury, and the verdict was for the defendant.

It follows that the judgment should be affirmed, with costs.  