
    Arthur Schwarzenbach, Respondent, v. Oneonta Light and Power Company, Appellant.
    Third Department,
    May 3, 1911.
    Public service corporation — water and watercourses—maintenance of dam so as to overflow land — injunction denied.
    Equity will not perpetually enjoin an electric lighting company from maintaining a dam so as to overflow the plaintiff’s land where it is the only company furnishing light to a municipality and the damages to the plaintiff are small and recoverable at law.
    Betts, J., dissented.
    Appeal by the defendant,, the Oneonta Light and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 26th day of August, 1910, upon the decision of the court, rendered after, a trial at the Otsego Special Term, awarding to plaintiff damages for overflow of his land by reason of a dam maintained by defendant; also awarding a perpetual injunction restraining the defendant forever after from maintaining that dam in such a way as to cause this overflow;
    
      
      A. R. Gibbs,. for the appellant.
    
      Alva Seybolt, for the respondent.
   Per Curiam :

Plaintiff’s right to damages is established by the decision in Schwarzenbach v. Electric Water Power Co. (101 App. Div. 345). His right to a perpetual injunction, however, does not necessarily follow that decision. In that case it did not appear "that the defendant company was engaged in any public service as it now appears in respect of this company. By the concession in the case, the defendant has the only electric light plant by which the public -is served at Oneonta, and it supplies the demand for electric lights in public places, business houses and residences therein. The plaintiff’s damage from 1902 to 1909 has been found to be only seventy-five dollars. That damage was so slight, for which the plaintiff has his remedy at law, that a court of equity will not decree a perpetual injunction which will place the defendant in a position whereby it cannot perform the public service in which it is engaged. The judgment should, therefore, be modified so as to suspend the operation of the injunction as long as the defendant shall be engaged in furnishing electric light to any municipality, and as modified affirmed, with costs to the plaintiff..

All concurred, except Betts, J., who dissented and voted for affirmance of the judgment in its entirety without modification.

Judgment modified so .as to suspend the operation of the injunction as long as the defendant shall be engaged in furnishing electric light to any municipality, and as so modified affirmed, with costs to the plaintiff.

CASES REPORTED WITH BRIEF SYLLABI AND DECISIONS HANDED DOWN WITHOUT OPINION.  