
    Homer E. Wilson, Appellant, v. Leonard J. Ager et al., Respondents.
    
      Wilson v. Ager, 166 App. Div. 969, affirmed.
    (Argued October 31, 1917;
    decided November 20, 1917.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 4, 1915, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The plaintiff is the owner of an electric light and power plant situate in the village of Port Leyden and on the easterly side of Rock island, which is an island in the Black river, and is formed by a branch or arm flowing westerly at a certain point and above said electric light plant and flowing around the island and again uniting with the main stream farther down and below plaintiff’s light plant. The said electric light plant is situate at the lower end of the island, which is owned by plaintiff. The upper end of the island is owned by the defendant Ager. The plaintiff alleged in his complaint that the defendant Ager threatened and was about to cut a channel or spillway across his land to the main branch of the river and thus draw off and divert the water away from the plaintiff’s power plant to the plaintiff’s damage and injury. The claim of the plaintiff was that if the defendant Ager ever had any instrument permitting him to cut any channel of the kind he claimed he was entitled to cut, then that such right expired by a limitation in the instrument which granted said license.
    
      P. H. Fitzgerald and F. J. De La Fleur for appellant.
    
      Henry Purcell for respondents.
   Judgment affirmed, with costs; no opinion.

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