
    Daniel B. McKee, Resp’t, v. The Delaware and Hudson Canal Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 16, 1889.)
    
    1. Action—When common law bight of equitable action not taken away—Chabteb Delawabe and Hudson Canal Oo.—Laws 1823, chap. 238, § 10.
    The charter of the Delaware and Hudson Canal Oo. (Laws 1823, chap. 238, § 10), which gives the right to a summary application for a jury to assess damages in certain cases therein specified, does not take away a plaintiff’s common law right of action, or his right to an action in equity.
    3. Damages—Liability fob ovebflow of wateb on anotheb’s land— When intentional.
    The right to dam a stream given by legislative authority may excuse a person who constructs the dam in the proper manner from liability arising from great freshets or from ordinary percolation of water, but such right does not authorize the person intentionally to pour the water thus accumulated upon the-land of other persons. Nor may he do this by pouring it through the natural channel of a stream which passes through the land of another in such large quantities that the channel cannot convey it without becoming liable to damages therefor.
    "The plaintiff has been the owner of a farm since 1851. Through this ran a small brook. He widened and deepened the channel and drained his flat land into it, so that the flat which had been boggy and useless land has become valuable meadow land.
    In 1811 defendant constructed on its own land a dam on this stream above plaintiff’s land. This dam holds back the water, and in dry seasons the defendant lets the water run through the brook to its canal, using the brook as a feeder. By doing this the defendant throws the water upon the plaintiff’s flat land, and injures it. This result .seems to be owing in part to a gravel bar below the flat land which holds the water back and thus turns it on plaintiff’s land.
    This action was brought in equity to restrain these acts ■of the defendant, and was tried before the court and a jury. The court charged that there was no evidence of neglect or want of care on defendant’s part; that plaintiff’s recovery did not depend on willful malice or negligent act of. defendant. The jury found a verdict for plaintiff. The court approved the verdict, and made several findings of fact and law. The court made no finding on the question of negligence, but found that defendant had not acquired a right to discharge water upon plaintiff’s land, and that it had at all times been practicable for defendant to cut down and lower the channel of the stream so as to convey the water in as large quantities as necessary without injuring plaintiff’s land.
    
      The court granted a perpetual injunction and a judgment for past damages found by the jury. From this the defendant appeals.
    
      Thornton A. Niven, for app’lt; Timothy F. Bush, for resp’ts
   Learned, P. J.

—We do not think that the provision in the charter (chapter 238, Laws 1823, section 10) which gives the right to a summary application for a jury to assess damages, takes away plaintiff’s common law right of action or his right to an action in equity. Selden v. Delaware and Hudson Canal Co., 24 Barb., 362; Crittenden v. Wilson, 5 Cow., 165.

The important question here is whether defendant is liable for the injury caused, without proof' of some negligence on its part. It is not claimed that there was defect in the construction of the dam or in its maintenance; and the defendant only discharges the water at times and in amounts necessary for the use of its canal.

The case of Bellinger v. New York Central (23 N. Y., 42) held that where, in pursuance of legislative authority, a person interferes with a running stream by obstructing its flow, he will not be liable for overflows caused, unless on proof of want of due skill. Probably this case states the doctrine claimed by the defendant. Similar is the case of Cuddeback v. Delaware and Hudson Canal Co. (20 Week. Dig., 454), where damage was claimed to arise by percolation from defendant’s canal.

If this action were for damages occasioned by a break of the dam the decision in Losee v. Buchanan (51 N. Y., 476 at 487) would probably apply.

But there is a difference in the present case. The plaintiff’s damages do not arise incidentally from the construction of defendant’s dam. They arise from the intentional act of defendant in discharging through an insufficient channel a large body of water, without providing sufficient outlet below plaintiff’s land. The defendant having a supply of water obtained by its dam, desires to send that water down into its canal. It does this without regard to the fact (of which it has been notified) that the channel of the stream will not carry so large an amount; and, therefore, the defendant is really pouring this water upon plaintiff’s land, with knowledge that it is so doing. While, of course, the defendant has, we. suppose, no wish to injure plaintiff, yet it does acts which it knows will directly injure him; and this it should not be allowed to do.

The right to dam a stream given by a legislature may ex-, cuse the person, who constructs the dam in a proper manner, from liability arising from great freshets or from ordinary percolation of water. But we think that such right, does not authorize the person intentionally to pour the water thus accumulated upon the land of other persons. Nor may he do this by pouring it through the original channel of the stream in such large quantities that the channel cannot convey it.

We are of the opinion that the decision of the learned justice was correct, and that the judgment should be-affirmed with costs.

Landon and Ingalls, JJ., concur.  