
    Daniel B. McKee, Resp’t, v. The President, etc., of The Delaware & Hudson Canal Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 13, 1891.)
    
    1. Riparian owner — Allowing water to escape from dam in large QUANTITIES.
    Where a riparian owner builds a dam so as to detain or store the waters of a natural stream, and then discharges it into the stream in such quantities as to overflow the lands of, and injure the riparian proprietor below, the latter is entitled to recover his damages, and restrain such trespass in the future by injunction.
    2. Same.
    A special provision for assessing damages in such case, contained in defendant’s charter, does not deprive plaintiff of the remedy by suit at law or in equity.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff.
    
      Thornton A. Niven, for app’lt; T. F. Bush, for resp’t.
    
      
      Affirming 23 N. Y. State Rep., 224.
    
   O’Brien, J.

This .was an action of an equitable character, to restrain the defendant from discharging water upon the plaintiff’s land through the means of a dam or reservoir constructed to store water for the use of its canal. The' case was tried by the court with the aid of a jury. The plaintiff recovered damages and the ■equitable relief claimed was granted and the general term has sustained the decision. The judgment rests on the following facts found by the trial court: In the year 1851 the plaintiff became the owner and went into the possession of the farm, for the alleged injury to which the damages were recovered. It embraced some thirty or forty acres of low, flat land, through which flowed a stream or small brook about six inches deep and from three to six feet wide. The land on both sides of the stream was marshy and the plaintiff straightened the course of the stream and made it considerably wider and deeper and then, by a system of drainage through the flat land and into the stream, thus enlarged, the land was reclaimed and became valuable for agricultural purposes. After the land became so improved the defendant, in the year 1871, constructed its dam and reservoir across this stream on its own land at a point above the lands of the plaintiff. This dam was used for the purpose of retaining and holding back the water in dry seasons, from which it was discharged through the stream on plaintiff’s land into the Neversink river, and from thence into defendant’s canal below.

The defendant in fact used the brook that ran through the plaintiff’s farm as a feeder through which water was discharged from the dam above into the canal. At certain seasons of the year, during the period of canal navigation, the defendant dischrged the water in much larger quantities than would othewise naturally flow in the stream and to such an extent that its banks were overflowed and the ditches, constructed by plaintiff to drain his land, filled and rendered useless and the flat land submerged and rendered until!able and the crops thereon destroyed. To prevent these injuries to plaintiff’s land a perpetual injunction was granted against the use of the stream as a feeder for the canal to discharge water through it in quantities greater than would naturally flow therein. It was not claimed that the injuries were caused by any want of skill, or negligence on defendant’s part in the ■construction of. the dam or reservoir, but to the fact that more water was discharged by defendant into the stream than it was capable of carrying off without overflowing the adjoining lands. The defendant had never acquired the right to use this stream for the purpose of conducting water to the canal by condemnation proceedings ■Or otherwise. The discharge by the defendant of water upon plaintiff’s land in the manner found was an inj ury in the nature of a trespass, for which the plaintiff was entitled to recover his damges and to restrain in the future by injunction. It is the case of a riparian owner above who has detained or stored the waters of a natural stream and then discharged it into the stream in such ■quantities as to overflow the lands and injure the riparian proprietor below. Cases are cited by the defendant to the effect that where a dam is constructed by legislative authority the party constructing it is not liable for damages caused by overflow or percolation in its use.

That principle has no application to this case. If the plaintiff's land had been damaged by water which percolated or accidentally «escaped from this dam without any neglect or fault on the part of the defendant, then these cases would probably apply. But here the defendant intentionally'pours water upon the land of an adjoining owner, because the water is discharged into a stream running through his land in such quantities that the channel of the stream cannot carry it away. If it should open its canal ¡at some point and intentionally overflow adjoining land causing damage it would be no answer to a suit by the owner to show that the canal at this point was well and skillfully constructed and that it was authorized by the legislature. It is quite true that the defendant’s agents are not moved hy any malice toward the plaintiff or any actual intention to injure him, but still they perform acts that have that result In such cases an action will lie at the suit of the injured party. St. Peter v. Denison, 58 N. Y., 416; Noonan v. City of Albany, 79 id., 470; Sipple v. The State, 99 id., 284; Vernumv. Wheeler, 35 Hun, 53; Scriver v. Smith, 100 N. Y., 471; Silsby Mfg. Co. v. The State, 104 id., 562; 6 N. Y. State Rep., 463.

The special provision for assessing damages in such cases contained in the defendant’s charter, Laws 1823, chap. 238, § 10, does not deprive the plaintiff of the remedy by suit at law or in equity.

The judgment should be affirmed, with costs.

All concur.  