
    David T. Lawless, Appellant, v. E. B. Van Wagner Manufacturing Company, Respondent.
    
      Lawless v. Van Wagner Manfg. Co., 166 App. Div. 970, affirmed.
    (Argued November 20, 1917;
    decided January 8, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 11, 1915, affirming a judgment in favor of defendant entered upon the report of a referee. The plaintiff, a tenant of a lower riparian owner, brought this suit to enjoin the defendant, an upper riparian owner, from maintaining a reservoir and dam constructed by it in November, 1910. The plaintiff claimed that the crest or spillway of the defendant’s reservoir, i. e., its new dam, is higher than the crest or spillway of its old dam; that the defendant, by means of its reservoir, stored or restrained water when there was not sufficient water 'flowing down the stream to operate its wheel and that the plaintiff sustained damages. The defendant contested the allegations made by the plaintiff, and, in addition, claimed that assuming that it did raise the height of its dam, nevertheless the evidence is uncontradicted that it did not raise the height of the fall, or increase the water power which it had always had, and to which it was legally entitled; that assuming that the construction of defendant’s reservoir did result in storing or restraining some water, nevertheless the evidence is uncontradicted that the defendant had a right to reservoir or reservoirs at least thirty-six times the size of the reservoir constructed by it and that the plaintiff sustained no damages due to the erection or maintenance of the defendant’s reservoir. The damages which he did sustain were due to causes unconnected with defendant’s reservoir and were increased by his failure to take inexpensive and obvious measures to protect himself therefrom.
    
      Merton E. Lewis and Carlton F. Bown for appellant.
    
      Stewart E. Hancock for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cuddeback, Pound, McLaughlin and Andrews, JJ. Dissenting: Chase, J. Not sitting: Hogan, J.  