
    Amsterdam Knitting Company, Respondent, v. Luther L. Dean and Others, Appellants.
    
      Watercourses—diversion of the waters, by an upper proprietor, from ihew natural course.
    
    riparian proprietor may insist that a stream shall flow to his land in the usual quantity and at its natural pláce and height.
    Where the effect of an embankment, placed in a stream by an upper proprietor, is to change the natural course of its waters, making them to pass down on the easterly instead of the westerly side of ah island,' and to cause them to flow more rapidly into the mill pond of a lower proprietor, and to carry a greater amount of floating debris against his bulkhead, the lower proprietor, although he receives the same amount of water as before, and, except as above stated, has sustained no actual damage by reason of the diversion of the waters of the stream, is entitled to nominal damages and to equitable relief in the form of a mandatory injunction for the removal of the embankment and for the restoration of the stream to its natural course.
    Appeal by the defendants, Luther L. Dean "and others, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 18th day of June, 1896, upon the report of a referee.
    The plaintiff is the owner of certain premises, which include a portion of the bed of Chuctanunda creek, across which it maintains a dam forming a mill .pond on its lands from which" it derived water power for use in operating its mills. Northerly of "and next above the plaintiff’s premises on the creek, the defendants own premises, including the bed of the creek and maintain a dam and pond from which they derive water power for use in their mills. The houndary line between the two ¡properties crosses an island in the creek which is about 170 feet long, about 70 feet thereof being below the line and belonging to plaintiff, and the balance being above the line and belonging to defendants. The plaintiff owns the-land upon the easterly bank of the stream, and its ownership of the. bed of the stream includes the bed of the channel west of the island, up to the boundary line. The plaintiff nses the greater part of its. lands within the bed of the creek above its dam as a mill pond, and the defendants’ raceway has for many years entered plaintiff’s mill pond at the northwesterly corner thereof, being at a point in the= channel west of the island.
    The natural course or flow of the creek, from time immemorial down to the time of its obstruction by defendants in 1888, was in the channel on the westerly side of the island, to the extent that,, in ordinary water, the greater part flowed down this channel, and. in low water, substantially all of it so flowed, and thence into plaintiff’s mill pond.
    In the year 1888 the defendants, for the purpose of improving their tail race, erected across the westerly channel, from the northerly end of the island to the main shore, an embankment or wall of stone* and have ever since maintained the same, thereby diverting thn water of the creek from the westerly channel. The defendants also* in or about the year 1888, lowered the channel on the easterly side= of the island upon their own land.
    Substantially all the waters of the creek are now delivered upon. the plaintiff’s lands easterly of the island, except that, when the defendants’ mill is running, the water from the tail race is discharged in the westerly channel.
    Since the diversion complained of, a greater quantity of floating debris is carried into the plaintiff’s east bnlkhéad, and it is necessary to more frequently remove the same. Aside from this inconvenience* the plaintiff, as the referee finds, has sustained no actual damage by reason of the diversion. The referee also found, upon the request of the defendants, that the plaintiff’s property has not been perceptibly injured by the erection of the embankment.
    
      The water coming from the channel west of the island enters the plaintiff’s mill pond from a northwesterly direction. Coming from the channel east of the island it enters from a southwesterly direction.
    The referee decided that the diversion and its continuance was unlawful and in violation of the plaintiff’s right to have the water come through its natural channel; that the plaintiff was entitled to nominal damages and to equitable relief, inasmuch as the diversion .was a continuous injury, and successive actions might be brought as 'long as it continued, and legal remedies were inadequate to éffect a restoration of the stream to its natural channel.
    The plaintiff was awarded a mandatory injunction for the removal of the embankment, and for the restoration of the stream to its natural course and level, so that, in ordinary flow of water, the greater part shall pass down the westerly channel, and in low water, substantially all of it shall so pass.
    
      W. B. Dunlap, for the appellants.
    
      Edward P. White, for the respondent.
   Merwin, J.:

The general rule is that a riparian proprietor may insist that the 'stream shall flow to his land in the usual quantity, at its natural place and height. (Gould on Waters, § 204, and cases cited.) An upper proprietor may use the water while it runs over his land, but he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his estate. (3 Kent Com. 439.)

• These general propositions are hardly disputed, but the defendants claim that, inasmuch as the plaintiff has shown only nominal damages and its property has not been perceptibly injured by the erection of the embankment, it is, therefore, not entitled to equitable relief.

In Smith v. City of Rochester (38 Hun, 612; affd., without opinion, 104 N. Y. 674) it was held that the plaintiffs were entitled to an injunction restraining a diversion, even though it occasioned no actual damages to. them. The principle was adopted which was laid down by Judge Story in Webb v. Portland Manufacturing Company (3 Sumn. 189), that where the act' done was such that by its repetition or continuance it may become the foundation or evidence of an adverse right, the case was one in which it was proper for equity to interpose by way of injunction, though no actual damage was shown.

The same principle was applied in Townsend v. Bell (62 Hun, 306, 311.) (See, also, Gilzinger v. Saugerties Water Co., 66 id. 173; affd., 142 N. Y. 633.)

The doctrine of the Webb case (supra) is adopted in Angell on Watercourses (§ 449); Gould on Waters (§ 513).

“ Equity will interpose, by mandatory injunction, to compel the restoration of running water to its natural channel, when wrongfully diverted therefrom, at the suit of the party whose lands include either the whole or a part of such channel.” (Corning v. Troy Iron & Nail Factory, 40 N. Y. 191.)

Many cases may be cited where the injury complained of related to the quantity of water used by the upper proprietor) and the absence of actual damages was deemed an important-element. They do not apply here. .

Here, in substance, there is a permanent appropriation by the defendants of the main channel of the stream as it- originally ran. The plaintiff has the legal right to have the water run in the channel west of the island and enter its mill pond as it was accustomed to do. It has a right to have that channel .open and unobstructed, and to have the water flow along its part of the island. The turning of the water to the easterly side of the island makes the distance shorter to the plaintiff’s mill pond, and naturally increases the force with which the water enters upon plaintiff’s premises, and affects, unfavorably to the plaintiff, the debris coming down the stream. .True, the plaintiff gets all the water it is entitled to have, but does not receive it from the direction or in the state it naturally would flow. The fact that defendants get more benefit from the diversion than the plaintiff would get from the restoration is no answer to the plaintiff’s right to relief. (Corning v. Troy Iron & Nail Factory, supra.)

The rule laid down in the Webb case (supra) is,'I think, applicable to uphold the decision of the referee.

The judgment should be.affirmed.

All concur, except Landon, J., dissenting.

Landos, J.

(dissenting):

The plaintiff’s damages are nominal; the permanent injury to the 'plaintiff’s freehold is technical and nominal. We should, in view of the great injury to the defendants to result from the injunction, ■apply the maxim de minimis non curat lew, and reverse the judgment, except as to six cents and costs. <■

Judgment affirmed, with costs.  