
    George Spink, Respondent, v. Anna Corning, Appellant, Impleaded with Frank T. Peart.
    
      Natural watercourse — what constitutes — duty of the owner of the servient tenement — deepening of the channel — construction of a/rtifieial lateral drains affecting the flow of water— license to excavate an artificial ditch — it may he revolved although a consideration was paid.
    
    A stream supplied by living springs, which for more than fifty years and as far back as the recollection of the oldest inhabitants extends, and before the drainage of the locality had been affected by the hand of man, ran continuously, except for a few months in dry seasons, in a defined channel draining a large watershed, constitutes a natural watercourse which the owner of the servient tenement is hound to keep free and unobstructed for the benefit of the owner of the dominant tenement.
    The fact that the persons whose lands were drained by the watercourse deepened the channel thereof with the consent of the then owner of the servient tenement does not entitle a subsequent owner of the servient tenement, after she and her predecessors in title have acquiesced in the change for over forty years, to close the watercourse entirely.
    The construction of artificial lateral drains leading into a natural watercourse, which at times increase the flow of water therein, and at other times decrease it to the injury of lower riparian owners, is not unlawful provided the watercourse is not thereby made to overflow its banks.
    
      Semble, that where an artificial ditch or channel is excavated, under a paroi or written license intended to be perpetual, a mesne grantee of the licensor may-revoke the license even though a consideration was paid therefor.
    McLennan, J., dissented.
    Appeal by the defendant, Anna Corning, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 28th day of November, 1900, upon the decision of the court rendered after a trial at the Monroe Special Term, certain issues having been submitted to a jury, and also from two orders made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 6th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to obtain a mandatory injunction requiring defendant to abate a nuisance consisting of obstructions placed by them in a natural watercourse causing the overflow of plaintiff’s lands, and permanently restraining them from obstructing such watercourse as it existed prior to the year 1895, and for damages to plaintiff’s crops caused by such overflow. The issues were brought to trial at a Special Term on the 5th day of April, 1900, and at the close of the evidence relating to the existence and history of the watercourse, the court, at the request of counsel, framed certain issues of fact for submission to a jury. The issues so framed were tried at a Trial Term commencing on the 4th day of May, 1900. The questions, together with the determination of the jury thereon, were as follows:
    
      “ Did the defendants or either of them obstruct the creek or ditch mentioned in the plaintiff’s complaint ? Answer: Tes.
    
      “Second. If either of the defendants did obstruct the creek or ditch, which one obstructed it? Answer: Both.
    “ Third. When were the several obstructions, if any, made, and by which defendant respectively were they made ? Answer: Miss Anna Corning, in the years 1895-96-97 and ’98. F. T. Peart assisted in 1897.
    “ Fowrih. Did the defendants or either of them obstruct the stream more than was necessary to place back into the creek or ditch what had been excavated in the year 1895, and if ¡so, which one? Answer: Tes, both. Anna Corning in the years 1895-96-97-98: F. T. Peart assisted in 1897.
    
      “ Fifth. Was the plaintiff damaged in consequence of said obstructions?' AnswerTes.
    
      “Sixth. How much were the damages caused by the defendant Anna Corning? Answer: ($500:00.) Five hundred dollars.
    
      “ Seventh. How much were the damages Caused by the defendant Frank T. Peart ?. Answer: ($1.00;) One dollar.
    
      “Eighth. If the plaintiff was damaged, state the nature of the crops damaged ? Answer: Potatoes, carrots, onions, wheat, corn, oats, buckwheat and grass. . •
    
      “Ninth. Did the plaintiff go upon defendant’s; property and excavate the rock in said stream without the consent of Anna Corning? Answer: No.”
    . ‘Thereupon defendant’s counsel made a motion for a ■ new trial upon the minutes of the court, upon all the grounds specified in section 999 of the Code of Civil Procedure, at said Trial Term. The motion was denied, but without prejudice to renew the same at Special Term, where it was reviewed and denied. The hearing before the Special Term was thereupon resumed and a decision containing findings of fact and conclusions of law was made and filed. The decision followed the findings of the jury upon the questions submitted to them. The court also found that plaintiff was, and since.the 28th day of March, 1888, had been, the owner in fee and possession of the premises described in the complaint consisting of thirty-nine acres and thirty-four and a half rods of land in the town of Penfield, county of Monroe; that defendant Corning, on or about-the 24th day of January, 1893, became the owner of the premises in said town consisting of thirty-two and three-fourths acres situate next westerly of and adjoining plaintiff’s said premisesthat on April ls 1893, defendant Corning entered into a land contract by which she agreed to sell and convey said premises to defendant Peart, who Thereupon went into possession pursuant to said contract and remained in possession until April 1, 1900, at which time ■ he removed therefrom; that “ there is and has been for a great many years a natural stream of water flowing through the plaintiff’s said property onto and through defendant’s said property, with well-defined bed and banks, and the channel to said stream, as it flows through defendant’s property, was and has been for over twenty years from 2£ to 3-¡- feet wide and to 3-¡- feet deep; ” that, “ for more than twenty years, said channel was of sufficient width and depth to carry the water off from plaintiff’s low land, and sufficiently drained the same so as to enable the plaintiff to till and crop said low land; ” that the defendant, by wrongfully and unlawfully damming and filling up and .obstructing the stream, as found by the jury, caused the water to overflow plaintiff’s premises to his damage - in the sum of $500 by the acts of defendant Corning, and to his damage in the sum of one dollar by the acts of defendant Peart; that in the year 1895 plaintiff deepened said stream by excavating rock from the bottom of the channel on the said premises of defendant Corning, by her paroi consent and license, which she subsequently revoked, and she thereafter built a dam across the stream and obstructed the same more than was necessary to restore the stream to the condition in which it was before such excavation of rock. In the conclusions of law the court awarded a mandatory and permanent restraining injunction, as- prayed for, and damages in accordance with the verdict of the jury.
    Plaintiff gave evidence tending to show, and which would have justified findings, that this creek or stream drained a watershed comprising from 1,000 to 1,600 acres of land; that the natural slope of the ground was toward defendant’s premises ; that with the bed or channel of the creek through defendant’s premises dammed up level with the surface of the banks, the surplus water from this watershed would flow over defendant’s premises along the line of this stream, where there was a slight depression, making a natural outlet for this watershed; that for more than fifty years there has been a natural watercourse, with well-defined banks, through the premises of both plaintiff and defendant, which drained this watershed and was a running stream some years throughout the season, but drying up through the premises of plaintiff and defendant for one, two or three months most seasons; that such stream was supplied by several large living springs situate more than a mile above plaintiff’s premises, one of which was never known to dry up or freeze, but the others ceased to flow in very dry seasons, and by rain and the melting of snow, and also by the water from a small tract of this watershed consisting of low, marshy, muck lands, known as a.. tamarack swamp, from which the water does not flow.readily; that prior to forty-two or forty-three years ago, and before anything had been done, toward artificial drainage or to interfere with the natural com dition of the. locus w, quo, these springs ran into this marshy muck ground, through which the waters found their way over the surface irregularly, and in no defined channel for along distance; then reaching harder soil, the flowing water came together and formed a natural, channel which extended through plaintiff’s lands and those of defendant also ; that after leaving plaintiff’s lands and passing a few. hundred feet through defendant’s premises the bed of the stream, descended considerably and quite abruptly so that there was a fall, of more than ten feet in. eight hundred; that in those early days,, more than fifty years ago, a saw mill was erected from about a half to three-quarters of a mile below defendant’s premises, which for.along period was run by water power from three to five months each year, -principally supplied by the watér that came through this-stream, which ultimately,- by natural watercourse, reached Lake. Ontario; that in this vicinity there is a rock bottom, and on defendant’s premises the rock comes within about a foot of the surface of', the ground, but it is in layers and is lower than the surface of plaintiff’s premises; that about forty-two or forty-three years ago the owners of the lowlands of this watershed, including the then owner of defendant’s premises, for their mutual benefit and to enable them to clear, improve and till their respective premises, agreed upon a-plan of cleaning out, deepening and straightening the channel of this natural watercourse from the springs referred to, to and through, defendant’s premises, a distance of more than a mile, which plan was. carried into execution by them; that the- witnesses who participated in or observed such cleaning out, deepening and straightening,' say nothing was done at that time along the line of this slight-natural depression in defendant’s premises where ■ .the bed of the: stream was, except to remove the loose stone and. earth, but other witnesses, from subsequent appearances, say that the surface rock was likely cracked, loose and broken and was removed with pickaxes or crowbars, thereby enabling the water to pass off more, readily and in a certain sense deepening the channel, and others say that the: rock had the .appearance of having been blasted out; that after the-.doing of this work forty-two or forty-three years ago the creek through plaintiff’s premises was from three and a half to four feet wide and about the same depth, and it was about the same width, but a foot or so less in depth through defendant’s premises; that ordinarily in the spring and fall the water flowing through this creek was between two and two and a half feet deep; that thereafter said channel remained in precisely the same condition, excepting as it was affected by the natural flow of water, until 1895, when plaintiff and others undertook, as stated in the findings, to deepen the channel by blasting rock from the bed of the stream; that lateral ditches emptying into this creek had been constructed upon either side, so that tho lands drained more readily and rapidly into the bed of this stream. The evidence fairly warranted the findings that plaintiff’s crops were damaged to the extent found by the jury, and that such ' damage was caused by the obstructions placed in the bed of this stream. It appeared that ever since plaintiff owned the premises, a period of thirty-three years, he has tilled and cultivated the same lands without any previous loss or damage from the overflowing of water, and the surface of such lands was above the bed of the stream through defendant’s premises, as it existed before being so obstructed.
    
      John Van Voorhis, for the appellant.
    
      George D. Heed, for the respondent.
   Laughlin, J.:

For more than fifty years, and as far back as the recollection of the oldest inhabitants extends, and before the hand of man had done anything to affect the drainage in this locality, the stream ran continuously, except for a few months in very dry seasons, through the premises now owned by the respective parties to this litigation, in the channel which defendant has obstructed, draining a very large watershed, and supplied by living springs. This constituted a natural watercourse which defendant Corning, as owner of the servient estate,, was obligated to keep free and unobstructed for the benefit of plaintiff, the owner of the dominant estate. (Gould Waters, §§ 41, 225, 263, 264; 24 Am. & Eng. Ency. of Law, 900; 24 id. 926; Barkley v. Wilcox, 86 N. Y. 143; Jeffers v. Jeffers, 107 id. 650: Wharton v. Stevens, 84 Iowa, 107, 114.) The only serious question that arises is with reference to the effect of the deepening of the channel through defendant’s premises upwards óf forty years ago. The case,-however,, was not tried and has not been presented to us upon the theory that if a natural watercourse existed its enlargement, as stated, was under a revocable license. The evidence on that point seems to have been brought into the case by plaintiff’s counsel, either incidentally or accidentally. It consists of part of the testimony given by a witness called in behalf of plaintiff on rebuttal, and appears to be uncóntradicted as to the fact that defendant’s predecessor in title joined in making the improvement. •. The property owners affected by the inadequacy of the watercourse, to prevent the- overflowing of their lands and its insufficiency to so drain such lands as to render the same available for early tilling, formed a bee to straighten and deepen the watercourse for the better drainage of their lands. They determined upon a plan and carried it into execution, for aught that appears in the record, under a claim of right which was acquiesced in by the owner of the premises where the channel has now been closed. It is apparent that this improvement. was designed to be permanent, for it is not probable that the other property owners would till and crop their lowlands, leaving it optional with defendant and her predecessors in title at any time to destroy the crops by filling the bed of the stream, and thus causing the water to overflow the premises above. The enjoyment of the improved watercourse by the owners of the property benefited thereby, as contemplated by all parties interested, is not consistent with the right of defendant to restore the channel to its condition as it existed before being thus improved. If this were wholly an artificial ditch or channel excavated under a paroi or written license intended to be perpetual, defendant would doubtless have the right -to revoke the license even though a consideration had been paid therefor. (Babcock v. Utter, 1 Keyes, 397;. Wiseman v. Lucksinger, 84 N. Y. 31; Cronkhite v. Cronkhite, 94 id. 323; Crosdale. v. Lanigan, 129 id. 604; White v. Manhattan, R. Co., 139 id. 19.) But this extreme doctrine which, upon grounds of public policy, precludes the enforcement of the license after part or full performance, thus constituting a departure from the rule adopted by courts of equity concerning other contracts relating to real estate (Newman v. Nellis, 97 N. Y. 285 ; Rindge v. Baker, 57 id. 209 ; Dempsey v. Kipp, 61 id. 462 ; Wheeler v. Reynolds, 66 id. 227; Wisemam, v. Lucksinger, 84 id. 31) has no application to the case at bar. Assuming, without so deciding, that this doctrine would apply to that part of the channel of the watercourse which is new and did not exist prior to the improvement to which allusion has been made, it is impossible to ascertain from the record before us the precise changes that were made in the watercourse through defendant’s premises at that time. The evidence is quite general and indefinite, and while indicating that the channel was deepened through the rock, the court could not formulate a decree therefrom by which defendant’s right of revocation could be enforced without trenching upon the rights of other property owners to have the watercourse kept open and unobstructed as it originally existed. In order to overcome the presumption of a grant and the acquisition of the right by adverse user, the burden was on defendant to show that the deepening of the channel forty-two or forty-three years ago was under a license from her predecessor in title. (Gould Waters, § 341; Hammond v. Zehner, 21 N. Y. 118 ; Townsend v. McDonald, 12 id. 381; Ward v. Warren, 82 id. 265 ; Heiser v. Gaul, 39 App. Div. 162, and cases cited; Pierrepont v. Barnard, 6 N. Y. 285.) The defendant and her grantors having acquiesced for nearly a half of a century in the enjoyment of this improved watercourse by plaintiff and his predecessors in title, she cannot be permitted to close it entirely now merely on account of its having been artificially deepened and enlarged. (Vannest v. Fleming, 79 Iowa, 638.)

It does not appear that the watercourse overflowed its banks on defendant’s premises in consequence of the lateral ditches or drains running into the stream from the premises of plaintiff and others. Artificial lateral drains into a natural watercourse, although they at times increase the flow of water therein and at other times decrease it, to the injury of those lower down the stream with reference to the supply and use of water, are not unlawful, provided the stream is not thereby made to overflow its banks. (Waffle v. New York Central R. R. Co., 58 Barb. 421; affd., 53 N. Y. 11; McCormick v. Horan, 81 id. 86; Noonan v. City of Albany, 79 id. 470; Barkley v. Wilcox, 86 id. 140; Peck v. Goodberlett, 109 id. 180.)

We find no. exception which constitutes a reversible error or requires extended consideration.

It follows that the judgment appealed from should be affirmed, with costs. '

All concurred, except McLennan, J., who dissented.

Judgment and order affirmed, with costs. -  