
    Catharine M. Gallagher and Margaret Kerr, Respondents, v. Kingston Water Company, Appellant.
    
      Injunction to restrain a diversion of water taken for public purposes — effect of a former judgment— past and fee damages—testimony of experts — rental value and location—contradicting a witness upon a collateral matter—effect on past damages and on the right to 'an injunction of a transfer by the defendant of its reservoir.
    
    A former judgment rendered in an action against a corporation authorized to exercise the right of eminent domain, for a diversion for public purposes of the waters of a creek from the grist mill of the plaintiffs, lower riparian owners, establishes their right to recover, upon the same state of facts, for a subsequent diversion of the waters; the judgment is evidence in their favor, and they may restrain the corporation by injunction unless permanent damages awarded are paid. In such a case the plaintiffs are, upon proper proof, entitled to recover past damages for six years prior to the commencement of the action and up to the day of trial, and also to an inj unction, unless the defend- . ant elects to pay the fee damages awarded for the future injury to the freehold, the latter being the difference in value on the day of the trial of the premises with and without the water diverted, and upon that question the evidence • of experts is competent.
    The limitation imposed upon experts’ testimony in the elevated railroad cases, where both benefits and injuries aré to be considered, is not applicable to a case in which there are no benefits, and in the latter case an expert may testify as to the present value of the premises with the water diverted and also as to what their present value would be, assuming that there had been no diversion of the water.
    Proof as to the rental value of the mill, with the original and also with the diminished supply ofi water, is admissible upon the question of past damages, as are also the actual rents, given and received for the mill, its situation in regard, to custom and the productiveness of the neighborhood in grain crops. The statement of a hostile witness, elicited on cross-examination, that he had riot, at the plaintiffs’ mill, which he was then operating, had an altercation with a brother of the plaintiffs, may be contradicted.
    Where the .defendant has built a reservoir and a conduit, which by gravity alone will permanently divert the stream, it cannot, by.offering to show that it had, before the day of trial, transferred its plant, escape liability for the. period subsequent to such transfer and prior to the trial where no proof is offered that the diversion has been stopped, nor does such an offer to prove a transfer affect the right of the plaintiffs to an injunction to restrain the diversion of the water in the future unless the fee damages are paid'.
    Appeal by the defendant, the Kingston Water Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Ulster'on the 7th day of January, 1897, upon the decision of the court rendered after a trial at the Ulster Trial Term, certain questions having been submitted to the jury who rendered a verdict thereon in favor of the plaintiffs, and also from an order entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    1. The judgment awarded the plaintiffs $488.40 damages for the diversion by the defendant of the waters of the Sawkill creek from February 6, 1890, to the time of the trial of the action,
    2. Adjudged that the value of the riparian rights of the plaintiffs appropriated by the defendant is $1,900.
    3. Adjudged that the defendant be enjoined from using the waters of the Sawkill creek to supply water to the city of Kingston, and commanding it'to remove its dam, pipes, conduits and other appliances, unless within two months after service of notice of final judgment it pay to the plaintiffs such sum of $1,900.
    The defendant, which was incorporated for the purpose of supplying the city of Kingston and its inhabitants with water, acquired by condemnation and purchase riparian rights of the Sawkill creek, a mountain stream, tributary to the Esopus creek, and in 1883 constructed a reservoir upon the Sawkill creek above plaintiffs’ dam, and laid pipes to the city of Kingston, and thus diverted water from plaintiffs’ mill. The plaintiffs are the owners of a grist mill on the Esopus creek, several miles below the defendant’s dam and about a mile below its confluence with the Sawkill creek. The reservoir of the defendant accumulates the water when the supply is ample, discharging it when the supply is deficient. The plaintiffs began an action in this court in 1887 to recover damages, alleging that the quantity and current of water in their mill had been greatly diminished, the capacity of the mill to produce and grind meal, flour and other products greatly diminished, and the use and running of the mill during a portion of each year entirely suspended. That action resulted in a judgment in favor of the plaintiffs for $684.55, which was paid' by defendant.
    
      A. T. Clearwater, for the appellant.
    
      John G. Van Etten, for the respondents.
   Landon, J.:

In a former action between these parties the plaintiffs recovered a judgment for damages against,the 'defendant for diverting the waters of the Sawlcill creek from plaintiffs’ mill dam and mill by means of its reservoir upon the creek above the plaintiffs’ dam, and the pipes leading the water from, the reservoir to the city of Kingston. This action is to recover like damages in consequence of the like diversion of the waters caused by the continuance by the defendant of the same means.

The former judgment éstablishes the right of the plaintiffs to-recover upon the like facts (Plate v. N. Y. Central R. R. Co., 37 N.. Y. 472;. Uline v. N. Y. C. & H. R. R. R. Co., 101 id. 113).; but apart from the judgment, which was certainly competent evidence,, the plaintiffs proved injury and damages, past and permanent. As-the diversion and, consequent injury to the- plaintiffs are shown to be continuous, the plaintiffs are entitled to an injunction, unless, the defendant, which is a corporation entitled by the right of eminent domain to take the water from the plaintiffs for the public: purposes to which it applies it, elects to pay the plaintiffs just compensation therefor in the sum which the court ascertains and fixes-for the purpose. (Henderson v. N. Y. C. R. R. Co., 78 N. Y.. 423; Pappenheim v. Met. El. R. Co., 128 id. 444; Galway v.. Met. El. R. Co., Id. 132.)

The defendant, as owner of the land- through which the stream, flowed, had the right to construct the reservoir and pipes, but not the right to use them so as to take away from the plaintiffs their usufructuary rights in the water of the stream except upon making-just compensation therefor. ■ (Smith v. City of Rochester, 92 N. Y. 463; Gilzinger v. Saugerties Water Co., 66 Hun, 173; affd., 142 N. Y. 633.) So far as past damages were concerned, the defendant was only liable for the actual injury done to plaintiffs', not the possible injury in case plaintiffs had had a better mill which could, have employed more, water. But in respect to freehold damages,, the plaintiffs were entitled to the full flow, of all the water,, even if they had never yet needed or used it. They are entitled to their property rights whether they use them' or not. (N. Y. Rubber Co. v. Rothery, 132 N. Y. 293; Amsterdam Knitting Co. v. Dean, 13 App. Div. 42.)

The action being an equitable one, the plaintiffs were entitled to damages for the six years preceding the commencement of the action and up to the day of trial. (Beir v. Cooke, 37 Hun, 38.) Damages to the day of the trial, followed by an injunction, unless defendant should elect to pay the permanent damages to the freehold, were necessary to give the plaintiffs the complete relief to which they were entitled.

As the diversion is a continuous one, the defendant does the plaintiffs injury day by day. The judgment for past damages covers the injury to the date of the trial. The permanent injury to the fee commences when the recovery for past damages ceases, i. e., on the date of the trial, and covers the future. The measure of permanent damages is the difference in value of plaintiffs’ premises on the day of trial deprived of the water which the defendant diverts, and their value if without such diversion. The two questions submitted by the learned trial court to the jury for tlieir verdict were framed in accordance with these rules. Unless some error to' the prejudice of the defendant occurred on the trial, the judgment should not be disturbed.

With respect to the present value of the premises with the water diverted, the opinions of experts were competent.

As to what its present value would be, assuming no diversion of water, the hypothetical assumption is contrary to the existing fact. In-the elevated railroad cases experts are not permitted to give their opinions upon such a hypothesis. ' (Roberts v. N. Y. El. R. R. Co., 128 N. Y. 455; Doyle v. Man. R. Co., Id. 488.) These cases, however, are peculiar. They relate to consequential damages resulting from the wrongful invasion of incorporeal easements, not from the taking of the land itself or of a corporeal part or incident of it. Hence, benefits as well as injuries are considered in estimating damagés. The plaintiffs’ rights here are corporeal, (Seriver v. Smith, 100 N. Y. 471.) The construction and- operation of the railroad results in some injuries, and often brings such benefits as more than compensate for the injuries. ' The court in measuring damages regards both benefits and injuries. The-expert, if he gives his opinion, necessarily has. to consider both benefits and injuries and balance the account•—which is the:very thing the jury have to do. The majority of the court thought.it better that all the conditions affecting values be shown, and thereupon the court or jury should determine. In the case before us there are no benefits, to be considered ; it is a simple question of value, with or without, the water ; like the value of a horse with or without the heaves. .Experts know better than the non-expert; their opinions are competent, and the jury can estimate their value. The defendant’s objections to this class of testimony were properly overruled.

As the plaintiffs were seeking to- recover past damages, it was in like manner and for like reason competent for them to prove by experts the rental value of the premises during the period for which they were entitled to recover both with the diminished supply and upon the assumption that the supply had not- been'diminished.

.The objections to the evidence of the rental value and of the-market value of the premises before defendant built its reservoir in 1883 were based upon the fact that the plaintiffs’ right to recover in this action was limited to 'the period since February 6, 1890,. and also upon the assumption that both the rental and freehold values of the premises had materially diminished between 1883 and 1890, and.since the latter date, from other causes than the acts of the defendant. There was. evidence upon both sides of the question whether the value of plaintiffs’ mill property had thus diminished.. The fact might be that there were no causes other than the acts of the defendant diminishing values since 1883. If there were such causes, they might be slight, and their influence easily estimated.. The rental and freehold values before the reservoir was constructed were values which could be fixed with little danger of error, and if the conditions other than the effect of the reservoir and since its construction were not likely to diminish values, then the values in 1883 would be a sort of landmark to guide the jury. It was for the trial judge to determine, upon consideration of the other evidence to which we have alluded, whether evidence objected to would be instructive or misleading, that, is, relevant or irrelevant. .We cannot say that he erred in receiving it. ' All the evidence tending to show diminished rental and freehold values from causes other than the defendant’s acts, seems to hay.e received due consideration from the court, and comparing the verdict with the values given by some of the witnesses, it is-inferable.that the jury gave these other causes consideration. Actual rents given and- received' within the time proper to be considered were competent. (Wright v. N. Y. El. R. R. Co., 78 Hun, 452; Cook v. N. Y. El. R. R. Co., 144 N. Y. 117.)

It was not improper to show the.situation of the mill with respect to its custom, and incidentally the productiveness of the neighborhood in grain crops.

A Mr. Legg testified in behalf of the defendant in disparagement of plaintiffs’ mill and its value. He was asked upon cross-examination in respect to an altercation between him and Robert Kerr, a brother of the plaintiffs, and denied having any, and the plaintiffs afterwards called Kerr and contradicted him, defendant’s objection that it was a collateral mattér called out by plaintiffs being overruled. It appears, however, that the altercation was at plaintiffs’' mill which Legg -was operating at the time ; that Kerr interfered,, apparently in the interest of .plaintiffs, and the testimony may support the inference that Legg, in testifying in disparagement of plaintiffs’ mill, was not free from the animosity which led to this altercacation or resulted from it, and in that view we cannot say that it was error to contradict him. (Schultz v. Third Ave. R. R. Co., 89 N. Y. 243.)

There are many other objections taken by defendant to the admission of testimony ; we have examined them, and do not think it was error to overrule them.

The defendant offered to prove that it had, March 1, 1896, transferred its reservoir and water works to the city of Kingston, and; had since then ceased to operate them. November 19, 1896, was-the day of the trial. This was refused, because not alleged in the answer, or, if subsequent to the commencement of the action, by supplemental answer. If the evidence thus offered tended to show that from March 1 to November 19,1896, the defendant had ceased to divert the water, then the evidence should have been received as tending to show when defendant’s liability ceased.

But the evidence offered did not tend to show that defendant had ceased to divert the water. Defendant built a reservoir upon the stream and laid a pipe therefrom through which the water by gravity was diverted from the plaintiffs’ mill. That is to say, the defendant’s construction was of such kind that by means off it the forces off nature diverted the water and would continue to divert it. Defendant’s sale and transfer of the construction did not stop the forces of nature, and, hence, did not stop the diversion. If, instead of a reservoir on the stream, the defendant had constructed it upon an elevation away from the stream, and had sunk a pit in the bed of the stream, and by means of a steam pump had forced the'water up into the reservoir, then defendant, upon the sale and transfer of its plant, could perhaps say that it had ceased to divert the water, since such diversion would only continue by continuing to operate the pump,

The rule as to nuisances is applicable, since the reason for it is the same. If the owner of premises creates a nuisance upon them, and then demises them, he still remains liable for the consequences of the nuisance as the'creator thereof.. (Edwards v. N. Y. & Harlem R. R. Co., 98 N. Y. 245; Timlin v. Standard Oil Co., 126 id. 514.) Moreover, a private nuisance is defined in Swords v. Edgar (59 N. Y. 34) as anything" unlawfully or tortiously done to the hurt or annoyance of the person, as well as. the lands, tenements and hereditaments of another.”

In respect to past damages, the offer of the defendant to prove the transfer of its plant was, therefore, properly overruled.

In respect to freehold damages, it is optional with the defendant to pay them or let the injunction issue. If it has abandoned its plant without obligation of indemnity to its grantee in case its - diversion of the water be stopped, the injunction will restore the plaintiffs to -their rights and. be harmless to the defendant. The offer of.the defendant did not .go far enough; it did not tend to show that it had stopped the diversion of which it was the creator,- and, hence, the proof -would not preclude the recovery of damages up to the trial, nor that it intended to stop it, and, hence, did not go to' future damages. If this view is correct, then the amendment of the answer to the same effect as the proof offered would, have been without avail. But the denial of the proposed amendment was within the discretion of the court.

The judgment and order should be affirmed, with costs.

All concurred, except Herrick, J., who concurred in -result.

Judgment and order affirmed, with costs.  