
    William H. Gray, Respondent, v. The Village of Fort Plain, Appellant.
    
      Diversion of water from a stream,—right of riparian owners to use its waters — remedy of an owner where a village, without impairing his present use of the stream, diverts part of its waters — measure of damages.
    
    A riparian owner of land upon a stream is entitled, subject to the rights of upper riparian owners to use the water for their own domestic purposes, to the full flow of all the water in the stream, even though he has never yet needed or used the full flow.
    
      Where a village, by means of a dam and a system of water pipes, diverts and intends to continue to divert large quantities of water from a creek for lire, domestic and village purposes, a lower riparian owner is entitled, although during the period of the diversion he has had all the water he needed and is, consequently, not entitled to recover past damages from the village, to recover as permanent damages from the village the difference, on the day of the trial, between the value of his premises with the water diverted and their value .without the diversion.
    Appeal by the defendant, The Village of Fort Plain, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 16th day of August, 1904, upon the report of a referee.
    The action was brought to recover damages for diverting the waters of North creek, a stream flowing through a farm of about ninety-six acres owned and occupied by the plaintiff, and to enjoin the defendant from continuing such diversion.
    The defendant in 1902 constructed a dam twenty-two feet high, with an apron twenty-two feet wide across said creek about a mile and a quarter above the plaintiff’s farm, from which dam the water is conducted a distance of eight or nine miles, a portion of the way in pipes ten inches in diameter, and a portion of the way in pipes eight inches in diameter, to a distributing reservoir near the defendant village, from which it is conducted in ten-inch pipes for use therein. The village of Fort Plain, the defendant, contains a population of about 2,500, and the amount Of water required- to supply them is from 150,000 to 200,000 gallons daily. The defendant is able to take from said dam above plaintiff’s farm in its said pipes 1,069,000 gallons of water every twenty-four hours, but since the erection of said dam and pipe lines the defendant has not at any time drawn water amounting to more than one-fourth the capacity of said ten-inch pipe. The amount taken and diverted by the defendant, however, has materially lessened the flow of said creek where it runs over and through the plaintiff’s farm. There is a fall of sufficient head in such creek on plaintiff’s farm with which the amount of water capable of being carried through the defendant’s pipes from said dam above the lands of the plaintiff would produce ten horse power of energy. The plaintiff, howevei*, has never used the waters of the creek for power, but there was proof that about fifty years ago there was a saw mill and a fulling and carding mill there operated by water power from said creek.
    The defendant intends in the future to continue to divert the water from such creek through its said pipes for fire, domestic and other village purposes.
    The action was referred to a referee to hear and determine.
    On the trial it was stipulated that, if the referee finds that the plaintiff is entitled to an injunction, that he then act as commissioner and condemn the water rights of the plaintiff and fix the future damages, upon payment of which no injunction shall issue.
    The referee, in company with the attorneys for the respective parties and with their consent, viewed the plaintiff’s premises and the dam or reservoir above his premises.
    The referee found that the plaintiff’s damages for the diversion of the waters of said creek up to the time of the commencement of the trial was the sum of six cents and that his fee or future damages for the right of the defendant to take and divert in perpetuity not to exceed 1,069,000 gallons of water per day from said creek was the sum of $450, with interest from the date of commencing the trial. He also decided that on the payment to the plaintiff by the defendant of such damages within the time specified in the report the latter should have such rights in perpetuity, and in case of failure to make such payment the plaintiff should have a perpetual injunction restraining such diversion. From the judgment entered upon this report the defendant appealed.
    
      H. M. Eldredge, for the appellant.
    
      H. D. Wright, for the respondent.
   Chester, J.:

. The defendant had never condemned the right to divert the waters of this stream from its natural channel. The plaintiff, as a riparian owner of lands on the stream below the point of diversion, was entitled to the full flow of all the water of the stream, even if he had never yet needed or used it. This was none the less a property right of his simply because he had never utilized it. (New York Rubber Co. v. Rothery, 132 N. Y. 293 ; Gallagher v. Kingston Water Co., 25 App. Div. 82.) And it was a right of which he cannot be deprived without his consent, except by condemnation. and by being compensated therefor. It is said in Standen v. New Rochelle Water Co. (91 Hun, 272): “ The general rule of law is that the owner of land, through which a stream of water runs, has a legal right to the usual and natural flow of the water across his premises, of which he cannot be deprived without his consent or just compensation, subject, of course, to the right of the upper riparian owner to use water for his own domestic purposes. The right to a stream of water is as sacred as the right to the soil over which it flows. It is a part of the freehold, of which no man can be disseized but by the lawful judgment of his peers or by due process of law.”

These and numerous other cases which might be cited effectually dispose of the claim of the appellant that because, after the diversion of the water by the defendant, the plaintiff had in said stream all the water he needed for watering his stock, horses and cattle and for all domestic purposes, he was not damaged by such diversion and, therefore, ought not to succeed in this action. The learned referee has practically adopted this view so far as past diversion is concerned, for he has only awarded nominal damages for that, but as the defendant intends to permanently divert the waters of the stream the learned referee was clearly right in awarding substantial fee damages for the permanent injury, based upon his view and upon the evidence, and in awarding an injunction in case such damages were not paid. The referee, under the stipulation of the parties upon the trial, was in effect made a commissioner as in condemnation proceedings.

The measure of permanent damages is .the difference in value of plaintiff’s premises on the day of the trial, deprived of the water which the defendant diverts, and their value if without such diversion. (Gallagher v. Kingston Water Co., supra.) This was the rule followed by the referee in fixing the permanent damages, and we think there iá sufficient evidence to support his finding as to the amount of such damages.

We have examined the numerous exceptions taken to the ruling of the referee, but we think none of them present reversible error.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  