
    John D. Grange, App’lt, v. Frank C. Gilbert et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March, 1887.)
    
    Pleading—Demurrer — Counterclaim—What mat be pleaded as— Code Crv. Pro., § 501.
    The plaintiff by his complaint alleged that the defendants by wrongfully excavating the channel of Grass river, threatened and were about to divert the water from his mills thereon, and he asks to enjoin them. He alleged his right to the use of said water as it then flowed. The defendants answered by way of counterclaim, and alleged: First, that they were the . owners of the right to. the use of such of the waters of Grass river as for forty years prior to 1865 flowed through a certain canal; that plaintiff’s title was subordinate to such right; that in 1865 plaintiff’s grantor, by wrongful excavations and constructions in the bed of the river, diminished the flow through defendants’ canal-and increased it through his own, and that the plaintiff still maintained his grantor’s wrongful encroachments upon the defendants’ rightful share of the water to defendants’ injury, and that the excavations of which plaintiff complained were proper to restore to each party his proper share of water; and, second, that the plaintiff wrongfully 0 stored and threatened to continue to store logs in the bed of the river, and in season of low water these logs obstructed the natural flow of the water into defendants’ canal to defendants’ injury. The defendants prayed judgment that the plaintiff be enjoined, etc., and for damages. On demurrer by plaintiff on the ground that these answers are not of the character specified by Code Civil Procedure, § 501: Held, that the first was good an^ the second bad.
    Appeal from an order and interlocutory judgment overruling a demurrer to defendants’ answer on the ground that the counterclaim was not within Code Civ. Pro., § 501.
    
      Chamberlain & Hale, for app’lt; W. H. Sawyer, for resp’ts.
   Landon, J.

The plaintiff, by his complaint, alleges that the defendants, by wrongfully excavating the channel of Grass river, threaten and are about to divert the water from his mills thereon to his damage, and he asks to enjoin them. He alleges his right to the use of said water as it now flows.

The defendants answer by way of counterclaim and allege, first, that they are the owners of tho right to the use of such of the waters of Grass river as, for forty years prior to 1865, flowed through a certain canal; that plaintiff’s title is subordinate to such right; that, in 1865, plaintiff’s grantor, by wrongful excavations and constructions in the bed of the river, diminished the flow through defendants’ ■canal and increased it through his own, and that the plaintiff still maintains his grantor’s wrongful encroachment upon the defendants’ rightful share of the water to defendants’ injury, and that the excavations of which plaintiff complains are proper to restore to each party his proper share of water. Second, that the plaintiff wrongfully ■stores, and threatens to continue to store, logs in the bed of the river, and in seasons of low water these logs obstruct the natural flow of the water into defendants’ canal to defendants’ injury.

The defendants pray judgment that the plaintiff be enjoined, etc., and for damages.

The plaintiff demurs and assigns, for grounds of demurrer, that these answers are not of the character specified in section 501 of the Code of Civil Procedure.

Section 501 provides that the counterclaim, which an answer may contain, “must tend, in some way, to dimmish or defeat the plaintiff’s recovery,” and .must also be a cause of action against the plaintiff in favor of the defendant * * *_ “connected with the subject of the action.”

The subject of the action is not the injury threatened to the rocks or land in the bed of the stream, but the injury threatened to plaintiff’s alleged water rights. The defendants’ first answer is that the water rights claimed by the plaintiff do not, to the extent ‘ claimed, belong to him, but are in part the rights of the defendants, and which the plaintiff, by wrongfully continuing the original diversion of his grantor, now keeps and withholds from the defendants to their injury. The defendants demand that the diversion shall cease and their proper rights be restored.

Row if the defendants establish their position they may altogether defeat the plaintiff’s recovery, for it may be that the only way to grant the defendants restoration will be to permit the excavation, in whole or in part, of which the plaintiff complains. The counterclaim is so “connected with the subject of the action ” that the success of the one inevitably defeats or diminishes the recovery upon the other.

But these views require us to sustain the demurrer to the second counterclaim contained in the answer. The subject of the action is the injury threatened to plaintiff’s alleged water rights by defendants’ permanent excavations. That subject is not touched by an allegation that the plaintiff by storing his logs in the mill-pond or stream also impairs the defendants1’ water rights.

Grant that both causes of action exist, the right to recover by the defendants could not properly defeat or diminish the recovery by the plaintiff.

The injury complained of by the plaintiff is a permanent injury to his water rights; the injury complained of by the defendants is in its nature temporary. These injuries do not affect the same property, and one may be repaired without affecting the other.

The order and interlocutory judgment should be affirmed as to the first counterclaim and reversed as to the second. The plaintiff may withdraw the demurrer as to the first, and reply within twenty days; the defendant may withdraw or amend his answer as to the second counterclaim within the same time.

3STo costs allowed either in this court or below.

Learned, P. J., and Mayham, J., concur.  