
    The H. Remington & Son Pulp & Paper Company, Respondent, v. The Water Commissioners of the City of Watertown, Appellants.
    
      Watercourse — erroneous finding as to height ofensl of dam — height of dam to be taken from level of average flow of stream, not from the minimum level.
    
    This is an appeal from an interlocutory judgment of the Supreme Court, entered in Jefferson county .clerk’s office April 14, 1903, in favor of the plaintiff.
   Nash, J.

It seems to be conceded that the crest of the defendant’s dam is two and seventy-seven one-hundr.etlis feet above the level of the average flow of the water at the property line of the plaintiff, instead of that height above the level of the water at the point where the plaintiff proposes to' erect its dam, as erroneously found in the eleventh finding of fact. The finding is based upon the levelings taken of the average minimum flow of water, whereas, the rights of the parties are to be governed by the ordinary stage of the water. The finding that “such backing of the w ater greatly reduced the plaintiff’s head at said site, so that in low and medium water the power will be seriously diminished,” erroneously implies that the rights of the parties may be based upon “ low and medium water,” instead of the ordinary -flow. The seventh finding of fact, determining the head or height of the fall of water which could be produced at the proposed site for a dam, is also based upon the erroneous figures found in said eleventh finding, as is also the rest of this finding. The facts found in said seventh finding of fact, and in the 8th, and the 2d, 3d,-4th and 5th paragraphs of the eleventh finding of fact, are matters which should be passed upon and determined upon a reference or by a commission in assessing the damages which the plaintiff has and will sustain, if any, by reason of the construction and maintenance of the defendant’s said dams at their present height, and the same should, therefore, have been omitted from the findings as a basis of an interlocutory judgment. While it is unfortunate that a new trial of this case should be had, still we see no other way to dispose of it, unless the parties stipulate to correct the errors referred to. All concurred. Interlocutory judgment reversed and new trial ordered, with costs to the appellant to abide event.  