
    EPHRAIM F. CURTISS, Appellant, v. JOHN AYRAULT, Respondent.
    
      Running water — diversion of—right of land owner to drain off surface water — Maps — when admissible in evidence.
    
    This action was brought to restrain defendant from unlawfully diverting the water from a ditch, called the Cove ditch, running through the lands of the parties to this action; the plaintiff having acquired a right to have the said ditch kept open, and to have the water continue to flow therein. Prior to the commencement of this action, the defendant had dug a ditch upon his own land, which prevented the surface water therein from running into the Cove ditch, as it had been accustomed to do. Held, that, if the defendant had dug the ditch simply to relieve his land from the water which accumulated thereon and was left there to its injury, in consequence of the neglect of the plaintiff and others to keep the Cove ditch in proper repair, he could not he held to have wrongfully diverted the water from the said Cove ditch.
    Maps and plats are admissible, when referred to in deeds, as original evidence, and also to exhibit the present visible condition of the premises in controversy, and to explain, illustrate and apply testimony.
    An appeal from an order of the Special Term, denying a motion for a new trial.
    The action is for the wrongful diversion of the water of a stream, called Indian creek, from plaintiff’s premises, commenced in a Justice’s Court, and removed into this court upon a plea of title being interposed before the justice. It was first tried at the circuit, in Livingston county, in January, 1868, when the plaintiff had a verdict, which was set aside by the General Term of the seventh district. The cause was retried in April, 1869, when a verdict was ordered for the defendant, which was affirmed at General Term, and judgment ordered for the defendant, from which the plaintiff appealed to the Court of Appeals, where the judgment was reversed, and a new trial ordered. The cause was again tried in May, 1873, and a verdict rendered for the defendant; whereupon the plaintiff moved for a new trial, at the same term, upon the minutes of the proceedings on such trial, which was denied. From the order denying such new. trial, the plaintiff appealed to this court.
    
      
      & Hubbard and A. J. Abbott, for the appellant.
    
      Q. F. Hanforth, for the respondent.
    
      
       Curtiss v. Ayrault, 47 N. Y., 73.
    
   E. Darwin Smith, J.:

The chief point presented on the argument, and in the points of the plaintiff’s counsel, is founded upon his exception to the refusal of the circuit judge to direct a verdict for the plaintiff, at the close of the evidence, as requested. The grounds stated by the counsel, and upon which the request is based, are, in substance, clearly correct, but they do not cover the whole case. In the charge of the judge to the jury, such views of the plaintiff’s rights are substantially assumed or held. And the charge, in this particular, is in substantial conformity with the decision of the Court of Appeals on this branch of the case.

The learned judge charged, in effect, that the ditch, called the Cove ditch, having been constructed by Hewbold, the original owner of the whole tract crossed by said ditch, and the same being in existence, and the water of Indian creek flowing therein, in 1849, when he subdivided said tract into four parcels, and sold the several parcels thereof to different persons, the original purchasers from him acquired the right to have said ditch' kept open, and the waters then flowing therein to continue to flow in it as it then flowed at that time in its accustomed channel, and that the grantees of such original purchasers took said land with all the rights of their respective grantors. He then submitted to the jury the question of fact, whether the defendant had diverted the water from such ditch, and advised them that so long as the water flowed therein, in sufficient quantity for any practical purpose, the defendant had no right to do anything which prevented that flow. Did the defendant divert the water ? That was the question put to the jury. It was undeniably proved, and, in fact, admitted, that the defendant had constructed a ditch on his own land, which drained said land, and took the waters of Indian creek off of the same in another direction, being the same waters which formerly ran in said Cove ditch, and which it was originally constructed to carry off to said Cove, on the plaintiff’s land. But it was contended at the circuit, by the defendant, as the judge states the defense on this point, that the flow of the water through this Cove ditch had become obstructed, so that the waters of Indian "creek had ceased to flow where they were intended to flow, and had spread over the defendant’s lands, and had reduced such' lands to practical sterility, by covering them with a marsh. It was in this view of the facts, if so 1 found by them, that the jury were allowed to find that there had been no unlawful diversion of the waters of said creek from the said Cove ditch, by the construction of the ditch so. made by the defendant, and it was, doubtless, upon this ground, that the verdict of the jury for the defendant was based. The action was for the diversion of the water which should have flowed in said Cove ditch, by the wrongful acts of the defendant. If he had done nothing more than construct a ditch to relieve his own land from the water accumulating thereon, and which was left there -to remain to the injury of said land, in consequence of the . neglect of the plaintiff and others interested in the flow of such water in said Cove ditch, to keep the same in proper repair, he could not properly be held to have wrongfully diverted the water from said ditch. This is, in substance, what the judge held at the circuit, and the verdict of the jury was necessarily in affirmance of such view of the facts upon the evidence. The request of the plaintiff’s counsel, that the court direct a verdict for the plaintiff, virtually overlooked, or ignored entirely, the issue arising upon the defense, as thus stated and held by the circuit judge, and subsequently sustained by the jury. Upon this branch of the case; upon the great mass of testimony taken in the case, and more or less material and conflicting; upon the issue really in dispute, I do not think that it was the duty of the judge to take the case from the jury, and think the plaintiff’s exception to his refusal to direct a verdict in his favor, not well taken. In respect to the various other exceptions to the charge, and to the refusal of the judge to charge as requested, and to the omission or exclusion of testimony, they are either not well taken, or so inconsequential that the verdict of the jury might, I think, have been sustained, and this protracted litigation ended, except for one single error, which precludes us from affirming the order of the Special Term. The plaintiff introduced a witness by the name of Joseph W. Holmes, who testified that he was a practical surveyor and engineer, and had recently made a map of the lands, mentioned in the proceedings on the trial, and their surroundings, and of the ditches thereon, and took levels of the ditches, and produced such map and testified that it was a correct map of the lands referred to, and the ditches and water-courses and surroundings, and that such map showed the general features of the said land and the ditches and the streams, etc. This witness gave considerable testimony upon the merits, referring to such map, and explanatory thereof, and of the situation and relative condition of the several parcels of land marked thereon, and of the several ditches upon the defendant’s lands, and respecting the question's and matters in controversy in the action relating to such land and ditches and localities; and quite a number of other witnesses gave like testimony in chief, referring to said map to illustrate their testimony, and corroborative of its correctness as a correct representation of the condition of the localities and other matters delineated therein, after which the plaintiff’s counsel offered it in evidence, and the same was objected to by the defendant’s counsel, as immaterial, and the objection was sustained, and the plaintiff duly excepted.

I do not see how this ruling can be sustained. A large portion of the testimony received in the cause, referred more or less to this map, and to data and marks and figures of measurements appearing on its face, all of which testimony is in a large degree unintelligible without the map. It would be indispensable, I should think, that the map be before the jury, and that the counsel be at liberty to use it and refer to it in argument, and apply and explain the testimony of witnesses by it. Maps and plats are admissible, when referred to in deeds, as original evidence, and they are also admissible to exhibit the present visible condition of'the premises in controversy, and to explain, illustrate and apply testimony, In actions of ejectment, and other actions relating to real estate, and in many other cases, maps are made for use at the trial, and are constantly used at the circuit, and, in most cases, are quite useful, if not actually indispensable, to enable courts and juries to comprehend readily the question in dispute. In such cases when proved to be correct by the surveyor or engineer by whom they are made, they are received in evidence, in connection with the testimony of witnesses, substantially as part of their testimony, and are clearly admissible as explanatory of such testimony. They are received for the consideration of the jury, so far as they are shown to be correct in connection with other evidence, and to enable them to understand and apply such evidence, and not as independent evidence. Such, in substance, was the ruling of the judge at the circuit, who tried the case of Johnston v. Jones, in reference to a large number of maps received in evidence, and used on the trial of that cause, all made by living witnesses, and verified by thend at the trial, as was done by Holmes at the trial in this action.

The ruling was approved by the Supreme Court, H. S., in bank; the said maps all being embraced in the case, and used in the argument.

The exclusion of this map, after so much testimony had been taken in the cause upon the merits referring to it, and which could not be understood without it, we think was clear error, making it our duty to grant a new trial.

The order of the Special Term should therefore be reversed, and a new trial granted, with costs to abide the event.

Present—Mtjllin, P. J., Smith and Gilbert, JJ.

Order reversed and new trial granted, costs to abide event. 
      
       Morris v. Lessee, 7 Peters, 554; Ryan v. Dox, 25 Barb., 446.
     
      
       Johnston v. Jones, 1 Black (U. S.), 216.
     
      
      
        Supra.
      
     
      
       1 Black, 222.
     
      
      
         Vide same case, 18 Howard, 150.
     