
    MYER v. WHITAKER.
    
      N. Y. Supreme Court, Third Department, Third District;
    
    
      Special Term, January, 1878.
    Riparian Rights.- — Watercourses.—Ponds. —Taking Ice.— Deed oe Right to Plow Lands.
    One who owns the land under a pond, or who has acquired the exclusive right to flow the land of another by a dam, has also the right to ice which forms in the water, subject to his duty not to alter the flow of the stream therefrom, so as to interfere with the beneficial employment of the owners below.
    
    
      Although such owner is not exclusive owner of all the water, he has a right not only to use the momentum of it as it flows, hut to remove water or ice for consumption or for sale, provided the usefulness of the stream below is not impaired.
    
    This right to the ice to form on a given area may be assigned.
    
    
      A grant by the owner of land, of the right to overflow his land by means of a dam on the stream below, gives the grantee the exclusive right to gather there the ice which may form over such land, on waters of the pond thus made.
    
    Trial by the court.
    This action was by Amanda M. Myer against E. G. Whitaker and J. Finger for the recovery of the value of certain ice taken from a pond caused by a dam across the Esopus creek, in the town of Saugerties, Ulster county, and was before the court for trial by the court without a jury. The following facts were established:
    The Esopus creek is a natural running stream of water emptying into the Hudson river at Saugerties aforesaid. About the year 1826 or 1827 a dam twenty-eight feet in height was built across it, and has ever since been maintained, which ponds and flows back the waters of the stream.
    One Joseph B. Sheffield, at the time of the occurrence of the events out of which this suit originated, was and is now the owner of the land upon which the dam rests, and also was the owner of all the land covered by the waters of the pond, except a small part thereof, which belonged to the Overbagh family. That family, however, by deed dated April 24, 1841, for the consideration of $5,750, had conveyed to the grantor of Sheffield “the right, privilege and liberty, to overflow so much of the said lands, falls and water privileges above mentioned as are now, or at any time hereafter may be, overflowed by means of the said dam across the Esopns in the year above mentioned, or by any other dam which may be erected in place of said dam.”
    The recitals in the deed show that the dam was erected during the years 1826 and 1827, and the waters by means thereof had overflowed the lands of the grantors, and rendered valueless to them certain falls in the stream.
    In February, 1876, the firm of Myer & Rosepaugh, of which the plaintiff is the survivor, purchased all the ice in the pond, formed and to be formed — there being some reservations which are not material to be stated— from Joseph B. Sheffield.
    Previous to the gathering of the ice from the pond, a freshet occurred in the Esopus creek which carried out of the pond a large part of the ice formed therein, and loosened that which was in controversy in this action from the shore, and would, probably, have swept this out also, had not the plaintiffs, by holes cut therein, fastened it to the shore and thus detained it.
    Ice, during the winter of 1876, was comparatively scarce and valuable. The plaintiffs had a contract for all the ice in the pond at $1.75 per ton stacked, and the cost of stacking and cutting was about half that sum, leaving a profit of eighty-seven and a half cents per ton.
    After the plaintiffs had commenced to remove and gather the ice, the defendants went to the part of the pond over the Overbágh lands, by permission from such family, and cut a large quantity of ice thereon against the forbidding of the plaintiffs, and in spite of such forbidding opened a canal or channel across the pond, and over that part -of it which was upon the land to which Sheffield had title, and floated the ice so cut by them through such canal or channel, and gathered and sold the same in the New York market. For the value of the ice so taken by the defendants, a recovery was sought in this action.
    
      Peter Cantine, for the plaintiff.
    
      Theodore B. Gates, for the defendants.
    
      
       Upon the same principle, the right to use a pond as a millpond in eludes the right to float logs in the pond, even as against the owser of the fee of the land. Beals v. Stewart, 6 Lans. 408. And see Town of Pierpont v. Lovelass, 4 Hun, 696; Partridge v. Eaton, 63 N. Y. 482, affl’g 5 Sup'm Ct. (T. & C.) 625; S. C., less fully, 3 Hun, 533.
      The usual rights of riparian owners ordinarily attach to artificial ponds as well as to running streams. Finley v. Hershey, 41 Iowa, 389.
      What constitutes a watercourse, within the rule as to the rights of owners below, — compare Macomber v. Godfrey, 108 Mass. 219; Swett v. Cutts, 50 N. H. 437; Conhocton, &c. R. R. Co. v. Buffalo, &c. R. R. Co., 3 Hun, 523; S. C., 5 Sup'm Ct. (T. & C.) 651; Wagner v. Long Island R. R. Co., 2 Hun, 633; S. C., 5 Sup'm Ct. (T. & C.) 163; Barnes v. Salron, 10 Nev. 217; Eulrich v. Richter, 37 Wisc. 226; Ogburn v. Connor, 46 Cal. 346.
      As to what is a reasonable use, — see Barnes v. Salron, 10 Nev. 217; Dumont v. Kellogg, 29 Mich. 420; Hinckley v. Nickerson, 117 Mass. 213; Holden v. Lake Co., 53 N. H. 552.
      An alteration increasing the flow may be unlawful, as well as one diminishing it. Mayor, &c. of Baltimore v. Appold, 42 Md. 442. Compare Treat v. Bates, 27 Mich. 390.
    
    
      
       The right to the water, held not a title to it, but only a right to use it while passing. Agawam Canal Co. v. Edwards, 36 Conn. 476, 497.
      According to some authorities, water, for a natural want, — such as thirst, — may be used without respect to deprivation of those below; but for irrigation or other artificial uses cannot. Union Mill, &c. Co. v. Ferris, 2 Sawyer, 176.
      As to taking water for irrigation, — see Hinckley v. Nickerson, 117 Mass. 213; Union Mill Co. v. Ferris, 2 Sawyer, 176; Fleming v. Davis, 37 Tex. 173.
      As to waters of a spring for household supply, and interferences therewith, — see Hanson v. McCue, 42 Cal. 303; Waffle v. Porter, 61 Barb. 130.
      After a taking of land, by the city, for the purpose of conveying water into the city, for its use, the owner retains the right to make any use not interfering with that purpose. Kane v. Baltimore, 15 Md. 240.
    
    
      
       The right is an easement which cannot be created or released without writing. Brown v. Woodworth, 5 Barb. 550; Mumford v. Whitney, 15 Wend. 380; Babcock v. Utter, 1 Abb. Ct. App. Dec. 27; Arnold v. Hudson River R. R. Co., 55 N. Y. 661; rev’g 49 Barb. 108.
      As to whether the ice is parcel of the land within the statute of frauds, — compare Bank of Lansingburgh v. Crary, 1 Barb. 542; Webster v. Zielly, 52 Id. 482; McGregor v. Brown, 10 N. Y. 114.
    
    
      
       As to the rights of the parties and their grantees, under a contract apportioning the surface of the pond among them, — see Hittinger v. Eames, 121 Mass. 539.
      For recent cases on how the boundaries of adjoining owners are to be determined in respect to water surfaces, — see Thornton v. Grant, 10 R. I. 477; Braxon v. Bressler, 64 Ill. 488; Kingsland v. Chittenden, 61 N. Y. 618; 6 Lans. 15; Wheeler v. Spinola, 54 N. Y. 377.
    
   Westbrook, J.

As the firm of Myer & Rosepaugh, of which plaintiff is the survivor, claims under a purchase from Joseph B. Sheffield, the first question which this case presents is : What right of property, if any, did Sheffield have in the ice cut and removed by the defendants ?

The water from which the ice was formed was ponded and gathered by him for his own use. He owned the dam that ponded and held them, which was located upon his own property. All the land under the water of the pond was his, except a small part thereof owned by Overbagh family, and upon and over that part of the land he held, by purchase, as the owner thereof, the right to flood and to hold the water. In a basin then, formed mostly out of his own land and in part out of the land of another, the right to use which for that purpose had been purchased for a valuable consideration from the owner, Mr. Sheffield had gathered a large body of water for his own use and benefit.

The manner of its use and the mode of its application to his own use, was not restricted by any deed, conveyance or title which he held, nor by any rule of law except the general one, that the flow of a natural stream shall not be so obstructed as to deprive owners below of the beneficial use and enjoyment of the stream and its flow. So long as such owners below were not interfered with, Mr. Sheffield, as the former and owner of the basin which held the water, had the right to use such water for his own profit; he could use its momenturn to propel machinery, and let that right to others he conld use the water for domestic and farming purposes, and could let and rent that right to others.

All these consequences follow, it seems to me, from his act of appropriation and gathering them. The land, basin, or vessel which held them, was his as owner in fee or as owner for use. By his dam he had filled that basin or vessel, and the water thus gathered or held therein was his, subject only to the exception that the beneficial enjoyment of owners below should not be interfered with, just as much as if he had gathered them for his own use and benefit into a tank or cistern which had been constructed for that purpose. The right to use and to sell the water in its liquid form is only a part of his right. When the form of the water changed by cold into ice, Mr. Sheffield had, it seems to me, the right to use it in its congealed form, and the same right to sell it and permit it to be gathered before it returned to its liquid state, as he had to use and dispose of when in the latter condition. There can be no difference as to his rights growing out of the state of the water.

All this appears so elementary and clear, and so plainly deducible from principles long established, as to be scarcely worthy of argument, were it not for the case of Marshall ». Peters (12 How. Pr. 218), upon which the defendants rely. In that case, which was very similar to this, a judge (Emott) for whose learning and integrity I have a profound respect, held that the party purchasing ice from the owner of a pond could not have an injunction against a trespasser who undertook to remove it. If the refusal to allow the injunction to continue had been put upon the ground that the plaintiff had an adequate remedy at law, and the insignificant value of the ice in controversy, the decision would not apply to the case before us.

The learned judge, however, goes further, and states-principles and reasons for Ms conclusions, which, if they are sound, control this cause. Examination and reflection compel me to dissent from the opinion rendered in the case cited, and the reasons therefor will now be stated.

The judge (pp. 222, 223) says : “ But it is quite as far from being true, that Mr. Lent is the owner of the water in this pond, or that it, or the ice formed from it, is his absolute property. The water in a running stream can never become, in any such sense as was claimed on the argument, the property of a riparian proprietor, even if he owns both banks, and the stream passes through his lands. All the property that a man can acquire in flowing water is a right to its use. He may have a certain right of property in it, but the water itself is not property. He has a right to its natural flow, and to use it for Ms cattle or his household, or upon his mill-wheels. But he cannot stop its current nor divert its flow, nor increase or diminish it, in any appreciable quantity. . . . He must allow the waters to pass out of his hands as they enter them, and his only right is aright to use them as they flow.”

The error, with deference it is said, which the learned judge makes, is the over-statement of a general proposition and the want of a proper application of certain qualifications, the existence of which he recognized, to the general rule which he asserts, and upon which his decision is founded. It may be true, as he says, that the possessor of the mill-pond is not the “owner of the water,” and that the same is not “his absolute property,” provided, the judge means, that the owner of the pond does not own absolutely and exclusively all the water therein. This of course must be true, for if it were not, the riparian owner above could use the entire water of the stream, and thus prevent its natural flow and beneficial enjoyment by the owners below.

It is also, however, true, — and this the judge admits when he says “he may use it for his cattle, or his household, or upon his mill-wheels,” though' he fails to give it weight, — -that the owner has the absolute property in the use of the water as it flows, not only in the application of its momentum, but also in its removal from the stream for consumption, provided the usefulness of the stream to the owners below is not impaired.

And it follows from this concession, because it is one of the rights of absolute property, that if such ownership as has been described is in one man, that he may convey the right he thus owns to another, the buyer taking it with the same limitations, that the title which he acquires to the water — liquid or solid— is subordinate to the rights of owners below, which must not be interfered with. To this extent, then, there is absolute ownership in water, — or its use, if that expression be preferred, — which the learned judge concedes.

Having made this concession, it seems to me, that his statement that there can be no “absolute property in the water of a pond, or the ice formed from it,” is too broad if applied to all the water, and is not limited in meaning, as the judge, in his general argument, seems to admit. It is too broad, because the right to use the water for domestic purposes, or to sell it for his own profit, and take it from the pond, and from the general flow for these purposes, subject only to the exception in favor of owners below, before stated, being conceded, it follows that the owner has some absolute property in the water — in its normal state or when frozen — which he needs, and which is capable of being enforced against one, who, without right, deprives the owner of its use or of his gains from a sale. If, as against such owner , and his needs, the stranger can take some, he may take all, and the ponder of the waters would have no rights which the law can protect. If the judge had borne more clearly in mind the extent of absolute property in water which may exist, and of his concessions, he could not have held that the congealed water which the owner needed for his own profit, and which did not interfere with the natural flow of the stream, nor with the beneficial enjoyment thereof by riparian proprietors below, could be removed by a mere naked wrongdoer at pleasure. This conclusion I regard as unsound, and is entirely at war with other adjudications and principles which will now be referred to.

In Mill River Woolen Manufacturing Company v. Smith (34 Conn. 462), it was held, “That owners of the water of a mill-pond own the ice formed upon it, and the riparian proprietors have no right as owners of the soil to remove it.”

In State v. Pottmeyer (33 Ind. 402; also reported in 5 Am. R. 224), it was held, “When the water of a flowing stream running in its natural channel, is congealed, the ice attached to the soil constitutes a part of the land, and belongs to the owner of the bed of the stream, and he has the right to prevent its removal.” This case is worthy of attention, because it was most carefully considered and elaborately discussed. It had been to the supreme court of Indiana once before upon the quashing of the indictment. The court then held the indictment good, because the ice might have been taken from a pool upon the land of the owner, and therefore refused to consider or decide whether there could be property in ice formed in a running and unnavigable stream.

Upon the trial of the indictment, the court below held there could be no property in ice formed in a running stream. The court above held the contrary, and reversed its judgment (See an article upon this case in 3 Albany Law Journal, 386).

In Elliot Fitchburg R. R. Co. (10 Cushing, 191), in Brown v. Bowen (80 N. T. 519), and in many other cases, it has been held that the ponder of waters has a right to make any use thereof which is not inconsistent with the rights of owners below. The effect of this doctrine, which is identical with that stated in the beginning of this opinion, is that this right of use, — which may be to propel machinery, for domestic purposes, for sale and for hire, — is property, of which the owner can not be deprived by a mere wrongdoer. If owners below are interfered with, they will be protected against the improper or wasteful use of the water by the owner above; but as against all others who are strangers to those rights, the owner of the pond will be protected in the enjoyment of the use of the water, whether it be carried to his mill to propel his machinery, to his house or barn for consumption, or to the property of others to whom he sells or lets it for like use, and this right of use of the water is without regard to its state or condition. It might as well be said that its use is confined to the frozen state entirely, as to say it is confined to the liquid solely. This principle, so long and well settled, must control this cause.

The only seeming difficulty which this case has presented to my mind, grows out of the fact that the ice in controversy was taken from that part of the pond which was above the lands of the Overbagh property, the owners of which gave permission to the defendants to do the acts complained of. Reflection, however, satisfies me that this fact can not prevent a recovery, because,

First. The defendants not only removed ice from that part of the pond which was upon the Overbagh land, but against the forbidding of the plaintiff they cut a channel across the entire pond, thus removing and destroying ice which was formed in that part of the pond which was upon the Sheffield property, and for the ice thus destroyed at least there must be a recovery.

Second. By the conveyance of the Overbagh family, the right to flow back the waters, and hold them in the pond for the benefit and use of the owner thereof is transferred, and that right Mr. Sheffield now has. There was no limitation whatever upon the use to which the ponder could put the waters, nor any reservation whatever to the Overbagh family in the water. In short, the effect of the Overbagh deed was to enable the owner of the right, by a dam, to make a large basin to hold water for his own use and purposes. Whatever rights, if any, which the Overbagh family had, or retained in the water, were subordinate to those of the owner of the right to pond. Being subordinate to those right's, the owner of the pond having need of so much thereof as was frozen, and such use being consistent with his ownership, as we have endeavored to show, no act or consent given by any of the Overbagh family could deprive the owner of the ponded water of the use to which he had applied it. This very principle is decided in Mill River Woolen Manufacturing Co. v. Smith (34 Conn. 462), before cited, in which it was held that the owner of the pond, as against the owner of the land, could prevent the removal of the ice. If it can be done because the owner needs the water in its liquid form, it can be done when the owner requires and needs it in its congealed form. The right to pond being for an unspecified purpose, its right of use and its manner of use depend upon the needs of the owner, to which all other rights are subordinate.

The cause has thus far been considered upon the abstract right of the plaintiff, obtained by the purchase from Sheffield, and our conclusion is that the action can be maintained upon that ground alone. There is, however, another view which is worthy of attention. After the purchase, Myer & Rosepaugh, who were the original plaintiffs, and to all their rights the present plaintiff, as survivor succeeds, by their own exertions in a freshet had saved the ice in controversy from being lost. By anchoring it to the shore and by labor performed thereon, they were in actual possession when the defendants took and converted it. If, with the' consent of Mr. Sheffield, the plaintiffs had taken from the pond a quantity of its water, and being in actual possession, the defendants had deprived them of it, could the plaintiffs have recovered 1 And when a part of the water has assumed the form of ice, and is thus separable from the rest of the water, and in that form capable of being possessed and held, — is in fact thus held and possessed and retained in position for removal, — can such possession be taken from them and they be remediless % That which was thus possessed by them and taken from them by others was valuable, and can be recovered for, though it still lay in the pond where they had secured it for removal and stacking, though it had not yet been actually removed or stacked. All the possession which could be taken had been taken, and what had been was so marked and visible, and exercised over and towards property capable of actual possession, that in such possession the plaintiffs should be protected.

The conclusion is that the plaintiff is entitled to judgment. The plaintiff’s attorney will prepare findings, which will be settled on notice.  