
    The New York Rubber Co., App’lt, v. John Rothery el al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Watercourses—Diversion—Eights of riparian owners.
    In an action by a riparian owner to recover for diversion of water. Held, that under the decisions of the , court of appeals in this case, the court properly refused to direct a verdict for plaintiff, and left the question as-to whether defendants by their raceway materially and perceptibly diminished the natural flow of the water in the natural channel to the jury.
    Appeal from judgment in favor of defendants, entered upon verdict.
    Action to recover damages alleged to have been sustained by plaintiff by reason of defendants diverting the water in the Matteáwan creek from passing by the property of plaintiff.
    
      Franklin Bartlett and W. II L. Lee, for app’lt; H. H. Hustis for resp’ts.
   Barnard, P. J.

Under the extremely restricted rule applied to this case, the verdict of the jury is supported by the evidence. The stream is a large stream, sixty or seventy feet wide. The defendants have a dam some 200 feet wide just above the point where the defendants take the water for their factory, and the dam for its extreme width overflows each day in the dryest of time for its entire length. The stream below the dam, at its lowest period, is ten or twelve feet wide, and when the defendants are running their factory, and at the lowest of water, no perceptible diminution is seen in the stream running in its natural bed. The defendants’ wheel is but a thirty-inch wheel. Proof which would have legitimately tended to show that the fluctuation in the stream, reducing it from a sixty foot width to a ten or twelve foot width, was caused by the ponding of the water of the stream in the great body called Whaley Pond, and in and by the numerous large ponds between that great reservoir and the defendants’ dam, was excluded. With this proof in, the stream would have been a very large stream in the lowest of water."

The judgment should be affirmed, with costs.

Pratt, J.

If we correctly understand the decisions of the court of appeals, 107 N. Y., 310; 12 St. Rep., 53; 132 N. Y., 293 ; 44 St. Rep., 557, the turning point of this case is this: Have defendants, by their race-way, materially and perceptibly diminished the natural flow of the waters of Matteawan creek from their natural channel in front of plaintiff’s two lots or either of them ? We understand that it has also been decided by that court that this question was for the juiy. The learned trial judge so held, and refused to direct a verdict for the plaintiff, even for nominal damages. This question was broadly and fairly submitted to the jury, and the verdict was for the defendant. It follows that the judgment should be affirmed, with costs.

Dykman, J., not sitting.  