
    Stephen B. Heaton, Plaintiff, v. The Village of Chester, Defendant.
    (Supreme Court, Special Term,
    June, 1908.)
    Constitutional law — Deprivation of life, liberty or property without due process of law — Taking property for public or private use — Ordinary use of waters.
    Deeds — Reservations and exceptions — Extent of reservation or exception — Reservation of use of waters.
    Health—’Health regulations and offenses — Municipal water supply — Preventing contamination—Extent of authority.
    Where the owner of lands adjacent to a pond or lake conveys to a municipality a portion of such lands to enable it to build a dam and deepen the water of the lake by overflowing the lands thus conveyed, reserving the right and privilege to the grantor, his heirs and assigns, to use the waters for watering stock, cattle and horses as theretofore used by him, the right to gather ice and such other uses as are now enjoyed by the grantor, he thereby reserves the right to the ordinary and reasonable use of the waters.
    In such a case rules and regulations of the State Board of Health for the protection from contamination of the public water supply of a municipality, made under the authority of the Public Health Law, cannot deprive the landowner of the ordinary and reasonable use of the waters adjacent to and covering part of his lands without compensation.
    Action for an injunction.
    Watts & Cox, for plaintiff.
    A. H. F. Seeger, for defendant.
   Tompkins, J.

The facts in this case are the same as in the case of George v. Village of Chester, except that the plaintiff herein, about the year 1895, conveyed to the defendant a certain piece of land adjoining a part of the waters of Long Pond ” or “ Walton Lake ” to enable the village of Chester to build its dam, and deepen the water of the lake, by overflowing the lands thus conveyed, together with other lands which were acquired by the defendant at the same time; but, in the deed of conveyance, the plaintiff herein made the following reservation: “ Reserving nevertheless the right and privilege to myself, my heirs and assigns forever, to use the waters of said pond, for the purpose of allowing stock, cattle and horses to water therein, as heretofore used by me, and also the right to gather ice therefrom, and such other uses as are now enjoyed by me.”

This reservation, in my opinion, places the plaintiff herein in the same position, so far as this action and the questions involved herein are concerned, as the plaintiff in the case of George v. Village of Chester, and entitles the plaintiff to the same relief, provided the evidence justifies a finding that the defendant had interfered with or threatened to interfere with the plaintiff’s rights in the waters of said lake.

I think the facts developed at the trial, and the matters set forth in the answer, justify the conclusion that it is the defendant’s intention to enforce the rules and regulations of the State Health Commissioner against the plaintiff, unless enjoined from so doing, and that it is the defendant’s intention" and purpose to enforce said rules and regulations, if permitted to do so.

Judgment for the plaintiff for an injunction, but without damages, and for" the costs of this action.

Judgment for plaintiff. 
      
      
        Ante, page 553,
     