
    The New York Rubber Company, App’lt, v. John Rothery et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1887.)
    
    1. Jury—Question for—Conflict of evidence.
    Where it is a material question on a trial whether" the use made by the defendants of the water in a stream flowing between their land and that of the plaintiff is or is not unreasonable or illegal, or in any way inconsistent with the plaintiff’s rights, and the evidence on the question is conflicting, it should be submitted to the jury.
    2. Estoppel—What are essential elements of.
    To constitute an estoppel, the person sought to be estopped must do some act or make some admission with the intention of influencing the conduct of another, or that he has reason to believe will influence his conduct, and which act or admission is inconsistent with the claim subsequently asserted by him. The other party, too, must act upon the strength of such admission or conduct. In order that silence may constitute an estoppel, it is essential that there should be not only the right but the duty to speak.
    Appeal from an order of the supreme court, general term, second department, affirming a judgment dismissing the complaint entered upon an order made at the Dutchess county circuit, and also denying plaintiff’s motion for a new trial, etc.
    
      H. B Turner, B. F. Lee & W. H. L. Lee, for app’lt; H. H. Hustis, for resp’t.
    
      
       Reversing 36 Hun, 642, mem.
      
    
   Peckham, J.

The defendants claim two answers were made to the plaintiff’s case, each of which was fatal to a recovery herein.

One answer was that the use made by the defendants of the water in the stream was not unreasonable or illegal or in any way inconsistent with the rights of the plaintiff. The defendants say that plaintiff’s lots are on the opposite side of the stream from their land, and that no machinery can be placed on the lots, to be propelled by water, as plaintiff has no land upon which to erect a dam, and there is no fall in the stream between the bridge and defendants’ tail-race, so that the only use the plaintiff could have for the water in the stream is for domestic purposes, and there being, as they claim, always water in the stream by the plaintiff’s lots for such purposes, its right as a riparian owner have not been injured.

The difficulty with this statement is that there is evidence in the case which tends to contradict it, and which tends to show that the use made by the defendants of the water in the creek was such that at various times the quantity which would otherwise have flowed past plaintiff’s lots was perceptibly and materially diminished in quantity and to such an extent that at certain times when the water was running through the tail-race of defendants there was none running over or through the dam except leakage, and, of course, none flowing past the plaintiff’s lot, the whole substantial part of the water of the stream going through defendants’ tail-race instead of down its original and natural channel. There is evidence tending to show that the water was not returned to the stream in time to reach that part of the plaintiff’s lot which it would otherwise naturally touch.

We do not assume to say that this evidence is true. But it raised an issue which the plaintiff was entitled to have decided by the jury unless there was some other defense to the action. There cannot be much dispute now as to the general rights of riparian owners, or that if the defendants did use the water to such an extent as some of the evidence tends to prove, they used it in a manner that they had no legal right to do.

Whether they did or not we do not know.

The other answer which the defendants make is, that of an equitable estoppel.

It may be assumed that at the time when the defendants built their mill-race and erected expensive buildings for manufacturing purposes, Ruth J. Smith was the owner of the lots in question, and which are now owned by the •plaintiff.

The estoppel is based upon the following facts: The •defendants built their tail-race upon their own lands and .erected their factory also upon their own lands, which factory was to be supplied with water from the stream carried through this mill-race. While Ruth J. Smith, was thus the owner of the lots, and while the defendants were building this mill-race on their own lands, she saw defendants and their men at work on it and on the factory, and she understood that the race was being built to take water from the stream to the shop, and during all the time it was in course of construction she never objected to it in any way or authorized any one to object to it for her, nor did she at- the time object to the defendants carrying the water down the race.

These are all the facts upon which an estoppel is claimed upon which the learned courts below decided that an estoppel existed. They are not sufficient to authorize the pinsumption of a grant or even a license (Haight v. Price, 21 N. Y., 241), and defendants must rest their defense upon an estoppel pure and simple.

It will seem there is no element of fraud in the case, nor any evidence that Mrs. Smith led the defendants into making this out-lay on any assumption that they had the right to do it when in truth they had not, and she knew it and yet induced them to go on and expend their moneys upon such erroneous assumption. Nothing of the sort is pretended. The 'simple case is presented of an owner of land standing by and seeing an owner of adjoining land make such use oí his own land as he had a right to without telling him that if he proceeded thereafter to do an illegal thing it would not be permitted.

The defendants had a right to excavate on their own land and to build such a factory as they choose, but even if they had no right to dig the tail-race and let the water in it, and thus (possibly) divert the water from the stream, the owner of the adjoining land (Mrs. Smith) was not bound to interfere or protest. She had the legal right to acquiesce in the actions of the defendants, so far as to refrain from interference, and her simple knowledge that defendants were thus engaged did not require her to object under penalty of the loss of her legal rights.

The cases referred to by counsel for respondents to sustain the estoppel, in this instance, do not go to any such length, and I have been unable myself to find any that do.

The counsel referred to Town v. Needham (3 Paige, 545); Thompson v. Blanchard (4 N. Y., 303); Brown v. Bowen (30 N. Y,, 519); Corning v. Troy Iron and Nail Factory (40 id., 191).

The first case, that of Town v. Needham, simply enforced the well settled rule of equity, that where the owner of real estate suffers another to purchase the estate from a third person and to erect buildings thereon under the erroneous belief that he has a good title, and such owner permits the purchaser to conclude his purchase and intentionally conceals from him his title to the property, the owner will not afterwards be permitted to enforce his title against such a purchaser. In Thompson v. Blanchard the same doctrine is held applicable to personal property. Brown v. Bowen holds the same principle, the same element of concealment on the one side and mistake of fact on the other, being present. To the same effect is Trenton Banking Co. v. Duncan (86 N. Y., 221). The English rule is substantially the same. Ramsden v. Dyson, L. R. I. H. L., 129.

Corning v. Troy Iron and Nail Factory is really an authority for the position taken by the plaintiff here, that no estoppel can be predicated upon the facts in this case.

There is no pretense that the defendants did not know their title and their rights quite as well as Mrs. Smith, and none that she in any way induced them to make this expenditure. _ She was simply passive in the matter and failed to object to the defendants doing what they did do. In this there was no element of an estoppel. To constitute it the person sought to be estopped must do some act or make some admission with an intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, and which act of admission is inconsistent with the claim he proposes now to make. The other party, too, must have acted upon the strength of such admission or conduct. See Brown v. Bowen (supra, 541).

In cases of silence there must be not only the right, but the duty to speak before a failure to do so can estop the owner. There was no such duty here. See Viele v. Judson (82 N. Y., 32).

The judgment of the general term and of the circuit should be reversed and a new trial' granted, costs to abide event.

All concur except Rapallo, J., absent.  