
    John C. Warren, Appellant, v. The City of Gloversville, Respondent.
    
      Injunction, to present a city from, discharging its sewage into an artificial canal— when it is a matter of right in the abutting owner—presumption that title extends to the center of the canal— distinction between a technical and a substantial injury — injunction causing great public or private mischief.
    
    An owner of land abutting upon an artificial canal, dug for the purpose of leading the waters of a natural creek to certain mills and thence back to the creek, is entitled to an injunction restraining ,a city, located on the creek, four miles above the canal, from discharging its domestic sewage and street washings in the creek, when it appears that such action on the part of the city causes the waters of the creek, as they run through the canal, to be rendered foul, noxious and filthy, and to result in substantial injury to such owner’s premises.
    The injunction granted in such a case should be to the same effect and contain the same provisions as that granted in Sammons v. City of Gloversville (34 Mise. Rep. 459).
    A court of equity is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right.
    When, however, the damages are substantial the fact that an injunction would interfere with great industries, the development of natural resources, or with the plans of a great city for drainage, is not a sufficient reason for relaxing the ordinary rules governing the rights of riparian owners of land.
    Where the wrongful interference with waters of a stream causes substantial injury, the person so substantially injured is entitled to an injunction restraining such unlawful interference, as a matter of right.
    The rule in regard to lands bounded on a non-navigable stream applies also to lands bounded upon an artificial watercourse, such as a canal or a ditch. In either case the presumption is that the adjoining landowner has title to the center of the watercourse, but this presumption may be rebutted by evidence.
    Appeal by the plaintiff, John 0. Warren, from so much, of a judgment of the Supreme Court, entered in the office of the clerk of the county of Fulton on the 7th day of November, 1902, upon the decision of the court rendered after a trial at the Fulton Trial Term before the court without a- jury, as denies the plaintiff’s motion for an injunction.
    The defendant is a municipal corporation containing about 18,000 inhabitants, and is located on the Cayadutta creek. The Cayadutta creek is a natural stream flowing southerly through, the city of Gloversville, to and through the city of Johnstown. The natural flow of the stream at low water is about 5,170,176 gallons per day. The city of Johnstown is situated about four miles below the city of Gloversville. In the city of Johnstown ever since 1853 there has been maintained an open canal about twenty-five feet wide and three feet deep, leading the great bulk of the waters of said creek from its natural channel in a westerly course to certain large mills there to be used for power and thence discharged into the natural channel of said creek. Said canal is about one-half mile in length. The plaintiff owns real estate in said city of Johnstown which is bounded on the south by said canal. Upon said lands plaintiff has constructed and maintained for more than ten years a small dwelling house and a meat market with'a dwelling over the same. In and prior to the year 1890 the defendant constructed a system of sewerage and drains by which it wrongfully and unlawfully discharged into said creek the domestic sewage of said city amounting to about 1,200,000 gallons per day, besides the washings of its streets through the various catch basins, and thereby renders the waters of said creek as they flow through the said canal foul, noxious and filthy. The wrongful acts, of the t defendant have produced a continued nuisance to plaintiff’s said lands and the plaintiff’s buildings thereon are permeated with unwholesome, offensive and deleterious odors arising therefrom. The defendant threatens to continue said nuisance and to increase the same, and will unless restrained by the court increase and continue said nuisance permanently and plaintiff will be compelled to bring actions against said city to recover his damages from time to time suffered by the trespass and nuisance so committed and continued.
    There are certain mills and a portion of the city of Johnstown that also discharge sewage and refuse into said stream. For six ' years prior to the commencement of this action and down to the trial thereof the plaintiff suffered damage by reason of the nuisance so created and maintained upon his said premises in the sum of $62.50 per annum, amounting in all to $471.35, of which two-fifths, or $188.54, thereof was caused by the said unlawful and wrongful acts of • the defendant. The court on these facts found that the plaintiff was entitled to damages in the sum of $188.54, but that he was not entitled to an injunction against the defendant for the reason that said canal is an artificial waterway and plaintiff is not a riparian owner, and judgment, with costs, was entered accordingly.
    
      M. D. Murray and Andrew J. Nellis, for the appellant.
    
      William A. McDonald, for the respondent.
   Chase, J.:

An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right. (Gray v. Man. R. Co., 128 N. Y. 509; Garvey v. Long Island R. R. Co., 159 id. 323.)

When, however, the damages are substantial, the fact that an injunction would interfere with great industries, the development of natural resources, or with the plans of a great city for drainage, is not a sufficient reason for relaxing the ordinary rules governing the rights of riparian owners of land. (Strobel v. Kerr Salt Co., 164 27. Y. 303.)

Where wrongful interference with the waters of a stream causes substantial injury, an injunction to the person so substantially injured is a matter of right. (Sammons v. City of Gloversville, 34 Misc. Rep. 459, and cases cited; affd. in this court, 67 App. Div. 628.)

The rule in regard to lands bounded on a non-navigable stream applies also to lands bounded upon artificial watercourses, as a canal, a ditch or such like. In either case the presumption is that the adjoining landowner has title to the center of the stream, but this presumption may be rebutted by evidence. (4 Am. & Eng. Ency. of Law [2d ed.], 832; 5 Cyc. 900.)

The trial court was in error in holding as a conclusion of law that upon the facts found by it the plaintiff was not a riparian owner nor entitled to injunctive relief. The plaintiff’s damage being substantial, the judgment so far as it denies an injunction to the plaintiff should be reversed, with costs to the appellant, and an injunction should be granted to the same effect and containing the same provisions as in the case of Sammons v. City of Gloversville (34 Misc. Rep. 459),

All concurred.

Judgment so far as it denies injunction to the plaintiff reversed, with costs to appellant, and injunction granted to the same effect and containing the same provisions, as in the case of Sammons v. City of Gloversville (as reported in 34 Misc. Rep. 459).  