
    Ernest I. White, Respondent, v. Henry H. Lansing, Appellant.
    Fourth Department,
    May 1, 1907.
    Equity — deposit of refuse on lands of another restrained.
    Although it is a question as to whether one landowner is entitled to deposit refuse on the lands of another owner hy virtue of provisions in a deed, equity will restrain such deposit when the act is not necessary but a mere matter of convenience.
    Appeal by the defendant, Henry IT. Lansing, from a judgment of the Supreme Court in fa vor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 24th day of September, 1906, upon the report .of a referee.
    ■ Levi B. Ghcupma/n-, for the appellant.
    
      George JET. Bond, for the respondent.
   Spring, J.:

The action is in equity to restrain the defendant from entering upon the premises of the plaintiff and depositing thereon rock, clay and stone and refuse from a plaster bed. The judgment restrains . the defendant permanently from dumping any more of this material upon the plaintiff’s premises, and requires the defendant to remove therefrom the refuse already deposited —• the plaintiff having elected that relief in lieu of fifty dollars damages, which election was given him by the referee. .

The plaintiff since March, 1905, has owned and occupied 150 acres of land in the town of Be Witt, Onondaga county. The defendant owns 50 acres adjacent to plaintiff on the east, and has for ten years or more. On the southerly part-of these tracts of land are deposits of plaster and gypsum, Since 1902 the defendant has been digging out the plaster in the southerly part of his land adjacent to the plaintiff’s farm and trucking the refuse stuff over on the premises now owned by the plaintiff. He,has covered an acre of the plaintiff’s land with this debris of the plaster beds from the depth of two to six feet, entirely destroying it for agricultural purposes as long as the rubbish remains.

Early in his excavations there was a hole dug in the land now owned by the plaintiff, but it was not developed to any extent. The great bulk of the refuse came from the defendant’s land and all of it since the plaintiff’s- ownership.

The defendant claims that he has the right to deposit this waste material from the plaster digging upon the plaintiff’s premises by virtue of certain deeds received in evidence. The referee has found, and the facts support his finding, that the defendant in the development of the plaster quarry on his own premises' is not obliged to dump the waste upon the farm of the plaintiff. We rest our decision upon this finding for it is the crucial one in the case. The defendant cannot make the plaintiff’s land servient to his own as a mere matter of convenience to himself. There must be some pressing necessity for this unusual appropriation of the plaintiff’s premises before it can be justified in any event.

The referee has with considerable elaboration in his opinion gone over the conveyances to ascertain the respective rights of these parties. We do not pass upon that question at all. Hor do we decide that if in the usual extraction of plaster it becomes essential to the defendant to deposit the refuse material upon the adjacent lands of the plaintiff he may not possess that right. We confine our decision for affirmance solely to the lack of necessity now existing for this invasion of the plaintiff’s premises- in accordance with the specific finding of the referee referred to.

All concurred.

Judgment affirmed, with costs,  