
    Van Buren v. Fishkill & M. W. Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 13,1888.)
    1. Waters and Water-Courses—Diversion of Stream—Measure of Damages.
    While the supply of water from a stream passing the brick-yard of which plaintiff' was the lessee was cut off by defendant, which had condemned the stream in proceedings to which the lessor alone was a party and erected a dam across it, plaintiff was compelled to stop her brick-works, and in consequence made 1,000,000 bricks-less than she otherwise could have made. Field, that the measure of damages-was not the value of the bricks, but the diminution in value of the premises for the-purpose of that business.
    3. Same—Evidence—Availability of Other Water.
    Such diminution being the measure of damages, evidence that plaintiff could, with» equal facility, and with as good results, have used the water from the river bounding the yard on the other side, is admissible.
    Appeal from circuit court, Dutchess county.
    Action by Charlotte Van Burén against the Fishkill & Matteawan Water-Company, to recover damages for the diversion of a stream of water. Defendant appeals from a judgment for plaintiff.
    •Argued before Barnard, P. J., and Pratt, J.
    
      H. H. Hustis, for appellant. S. K. Phillips, (M. A. Fowler, of counsel,)» for respondent.
   Barnard, P. J.

The plaintiff was the lessee of one Gurnee of brick-yard-premises situate in Fishkill, Dutchess county. During the continuance of the lease the defendant, a corporation for conducting pure and wholesome-water to Matteawan and vicinity, condemned a stream of water which in part ran by the premises so held under lease by the plaintiff, and built a dam» 'ncross it. The plaintiff was manufacturing brick, and needed the water *o moisten the clay, and for various other purposes connected with brick manufacturing. The consequence was that the plaintiff had to stop her works-some 25 days for want of water. In the condemnation proceedings the plaintiff was not made a party, but the lessor alone was compensated by the award» of the commissioners. The evidence tended to show that about 1,000,000 less-brick were manufactured than could have been manufactured if the water supply had not been diverted by the defendant. Proof was offered to show that the plaintiff could have used the water from the Hudson river which bounds the yard on the west with equal facility, and with as good results as this water from the stream. This evidence was rejected. The court instructed the jury that the true measure of damages was “the brick she could not make by reason of stoppage on account of diminution of water, and that value is to be taken at the machine where the water was to be used; the value of the brick she was prevented from making. ”

Two questions are thus presented. Must the plaintiff adapt the business to the changed condition of things by reason of the condemnation, if she can thereby lessen the damage, and was the rule of damages 'right? Both questions are answered, if the rule of damages was wrong. The evidence does not, as I read it, show any loss of material. The clay was dug out of the bank, and lay thus as clay because of a want of water to moisten it. When» water comes, the clay is passed into brick, and the value of the brick in the green state included the clay. The rule gave the value of the brick, and did not deduct the value of the clay. It is manifest that the plaintiff’s injury was in tiie failure to receive the profits upon 1,000,000 of brick more than she» made, but it would not be a just rule which give her the value of this 1,000,-000 brick, while the clay remained in the bank, and the brick were never made at all. The proper rule, as stated by the court of appeals, in a case of th’iis kind, is “the diminished rental value of the premises for the purpose of that business during the period of diversion. ” Colrick v. Swinburne, 105 N. Y. 503,12 N. E. Rep. 427; Cassidy v. Le Fevre, 45 N. Y. 562; Francis v. Schoellkopf, 53 N. Y. 152. This'rule as to the measure of damages would require the introduction of the evidence offered as to the Hudson river water. If the diminution of rent is the rule, the premises, as they are after the diversion of the stream, is the subject of the rent, and that includes the Hudson river wafer, if as good and as easy to obtain as the diverted stream. The judgment should therefore be reversed, and a new trial granted. Costs to abide event.

Piiatt, J., concurs.  