
    Henry Miller, App’lt, v. William C. Young, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    'Abatement and eevival—What actions survive.
    ■ An action for diverting water of a spring belonging to the plaintiff is an action for injury to property and survives against defendant’s personal rights.
    Appeal from an order, denying a motion for leave to continue an action in the name of Mary L. Young, individually, and as executrix, etc.
    
      J. H. Stevens, for app’lt; Welsey Brown, for resp’t.
   Davy, J.

This action was brought against William 0. Young to«restrain him from diverting and obstructing the water flowing from a certain spring belonging to the plaintiff and depriving him of the use of it. The cause was partly tried at a special term of this court held in the county of Alleghany in August, 1893. The defendant died before the case was finally submitted. Thereafter a motion was made at special term, in May, 1894, for an order allowing the action to be revived and continued against Mary L. Young as sole executrix of the last will and testament of Wifliam C. Young, deceased, and against her individually, she being the sole residuary devisee named in the testator’s will. The motion was denied, and the appellant appeals from that order.

The plaintiff, in his complaint, asks a judgment that the defendant be restrained from diverting the water from the spring,, and that it be restored to its former condition, and that he be allowed $1,000 damages. The defendant contends that the action was clearly personal to William 0. Young, and that it abated upon his death, and could not be revived against his personal representatives. Johnson v. Elwood, 82 N. Y. 362, relied upon by the learned counsel for the respondent, has no application to this case. In that proceeding the injunction was dissolved, by stipulation, upon the termination of another suit involving the title to the premises. Judgment of discontinuance was entered, and an order of reference was granted to compute the amount of damages upon the undertaking. It was held that the undertaking provided for the payment of damages in the event, only, that the court shall finally decide that the plaintiff was not entitled to the injunction. The court held that there had been no breach of the condition of the undertaking in this respect, and that there had been no final determination which warranted the court in ordering a reference to compute the amount of damages ; that the discontinuance of the action by stipulation was not equivalent to a final decision of the court.

The rule of common law was that actions of tort died with the person by or to whom the wrong was done. The Revised Statutes, however, have created a great change in reference to actions for tortious injuries to property which did not survive under the common law. The rule which must guide us in this case, in determing whether the motion for substutition should be granted or not, is found in 3 Rev. St. (6th ed.) pp. 447, 448, §§ 1, 2. Section 1 provides that actions for wrong done to the property rights or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executors or administrators,' against such wrongdoer, in the same manner and with the like effect, in all respects, as actions founded upon contract. Section 2 provides that the preceding section shall not extend to actions for slander, for libel, or to actions for assault and battery, or false imprisonment, or to actions on the case for injuries to the person of the plaintiff, or to the person 'of the testator or intestate of any executor or administrator. In the case of Cregin v. Railroad Co., 83 N. Y. 596, Judge Finch says:

“The question whether the cause of action survived came before us on appeal. 75 N. Y. 192. Its answer involved a construction of the statute relating to suits, by and against executors and administrators. 3 Rev. St. (6th ed.) pp. 447, 448, §§ 1 and 2. We held that it preserved the right of action for tortious injuries affecting pecuniary rights or interests, and by which the estate of the deceased was diminished, excepting, of course, the wrongs referred to in section 2, and particularly named.”

' In Drake v. Grant, 22 St. Rep. 502, it was lfbld that, under the Revised Statutes, an action for wrong done the property rights and interests of another, for which an action might be maintained against the wrongdoer, can be maintained, after his death, against his executors or administrators, in the.same manner and with like effect, in all respects, as suits founded upon contract.

This is clearly an action for injury to property. The diversion of the water from the natural spring and channel, and depriving the plaintiff of the use of it, was an injury to his land, which would depreciate its value. It is true that more or less controversy has arisen in the courts relative to the words “property right or interest,” as used in the first section of said statute. But there can be ño question but that property may consist of land. In the broad sense, property may be considered any thing or things subject to ownership, aad any thing that may be possessed and enjoyed. Any obstruction, therefore, to the natural flow of the water from the plaintiff’s spring is an injury to his propeity, for which he has a right of action.

Judge Rapallo, in Cregin v. Railroad Co., 75 N. Y. 194, discussing this subject, said:

“The rights and interests for tortious injuries, to which the statute preserves the right of action, have frequently been considered. It is generally conceded that they must be pecuniary rights or interests, by injuries to which the estate of ■ the deceased is diminished.”

Construing the statute according to its plain meaning, as interpreted by the courts, there can be no question but that the plaintiff is entitle'd to have this action revived and continued against trie executrix for the wrong done to his. property rights and interests by William C. Young, deceased. .

The order of the special term, therefore, must be reversed, and the motion for substitution granted, with costs against the respondent. All concur.

Order reversed.  