
    Asa F. Potter, Respondent, v. Alanson A. Sumner, Appellant.
    
      Complaint alleging the erection and maintenance for some sixty years and the subsequent raising of a darn—when it states only a single cause of action for the . raising of the dam —pi'esariptive right.
    
    The complaint in an action alleged that the plaintiff was the owner of certain lands therein described which bordered on the Sacandaga river; that about 1841 one Barbour erected a dam about seven feet high across the river, by means of which the waters thereof were set back and raised about five feet upon the plaintiff’s land; that about 1883 the defendant became and now was the owner of the lands on each side of the dam with all rights in said dam; that after that time and down to September, 1900, the defendant continued to maintain this dam, by means of which the water continued to be set back upon the plaintiff’s land as before; that in September, 1900, the defendant raised the dam, whereby the waters of the river had been still further set back upon the plaintiff’s land and that the plaintiff had suffered damages to the extent of $2,000.
    
      Held, that the complaint stated a single cause of action, namely, to recover damages for the action of the defendant in raising the dam in September, 1900, beyond the height at which it had been theretofore maintained, and that it was proper, therefore, for the court to deny the defendant’s motion for an order requiring the plaintiff to serve an amended complaint stating in one count the facts constituting his alleged cause of action for the maintenance, continuance and use of the dam prior to September, 1900, and in the other count the facts constituting his cause of action for raising the dam and thereafter using the same:
    
      Semble, that, upon the face of the complaint, the defendant and his grantor had acquired, by prescription, the right to maintain the dam as it existed prior to September 1, 1900.
    Appeal by the defendant, Alanson A. Sumner, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 30th day of January, 1902, denying his motion for an order requiring the plaintiff to serve an amended complaint, wherein shall be stated in one count the facts constituting his alleged cause of action for the maintenance, continuance and use of the dam therein mentioned and in another count the facts constituting his cause of action for unlawfully and wrongfully in September, 1900, raising such dam and thereafter using the same.
    
      A. Page Smith, for the appellant.
    
      Wash Pcokwood, for the respondent.
   Fdesman, J.

The complaint alleges that the plaintiff is the' owner of certain lands therein described which border on the Sacandaga river; that about 1841 one Barbour erected a dam about seven feet high across the river, by means of which the waters thereof were set back and raised about five feet upon the plaintiff’s land; that about 1883 the defendant became and now is the owner of the lands on each side of the dam with all rights in said dam ; that after that time and down to September, 1900, the defendant continued to maintain this dam, by means of which the water continued to be set back upon the plaintiff’s land as before; that in September, 1900, the defendant raised the dam, whereby the waters of the river have been still further set back upon the plaintiff’s land and that the plaintiff has suffered damages to the extent of $2,000.

The complaint states but one cause of action.

The owner of this dam and the adjoining lands on each side of the river at the place of its erection and maintenance had acquired in 1883, by prescription, the right to continue to maintain it to the same height and in the same manner to thereby overflow the' plaintiff’s land that, had been done ever since its erection in 1841. (Hammond v. Zehner, 21 N. Y. 118; Washb. Easem. & Serv. [3d ed.] 372; Baldwin v. Calkins, 10 Wend. 169; Hall v. State of New York 72 App. Div. 360.) The right to maintain the dam was appurtenant to the land and passed to the defendant by the conveyance of 1883 and carried with it the right to overflow the plaintiff’s land to the same extent that it had been overflowed since 1841. The plaintiff, therefore, has no cause of action for overflowing his land prior to September, 1900. If at that time the defendant unlawfully increased the height of the dam,, whereby the area of land overflowed was extended, the plaintiff has a cause of action for such injury. The height to which-the dam was raised in. 1900 is not stated in the complaint, nor is the extent of the increased area of land overflowed, but this motion is not to make the complaint more definite and certain in this respect. It is probable, that the pleader assumed that a recovery could be had for all the injury occasioned by the overflowing of plaintiff’s land, as well that from 1841 to September, 19.00, as that caused by raising the dam at that time and since then suffered in consequence thereof. But this is not so. The cause of action set out in the complaint is for damages caused by raising the dam to a height greater than the defendant had a lawful right to maintain it,' and all that precedes the statement thereof may be regarded as a mere recital of the facts by reason of wiiich. the defendant acquired a right to maintain his dam at á height of only seven feet, or even as surplusage.

The order must be affirmed, with ten dollars costs and. disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  