
    The Henderson Estate Company and The Matteawan Manufacturing Company Appellants, v. The Carroll Electric Company, Respondent.
    Second Department,
    June 8, 1906.
    Watercourse—right of upper riparian owner to store water in dam— flow of water may be interrupted in time of drought—easement created by grant not extinguished by nonuser—reservation by grantor of mill rights construed — extra allowance.
    The upper owner of riparian rights may detain the flow of the stream to accumulate the water in a dam for mill purposes so long as the use is reasonable and not in excess of the ordinary flow of the stream. The court will not intervene to restrain such owner from using the water at night and accumulating it by day when it has been the custom of millowners on the stream to operate by night or day as convenient.
    In times of drought an upper owner may, owing to his advantage in position, impede the flow sufficiently to create a head of water, although lower owner» are temporarily deprived of the usual flow.
    An easement in watercourses, when created by deed, is.not extinguished by non user in the absence of unequivocal acts or conduct showing an intention to abandon it.
    It will not be presumed that a grantor of mill privileges in reserving the use of the dam “ as heretofore for the benefit of the privileges below” intended to restrict the grantee to the precise use made of the property prior to the grant. Moreover, the failure of the grantor’s successors in title to object for forty-three years to improvements made by the grantee favors the above construction.
    Where the right of plaintiff to have the unobstructed flow of the stream is at issue, and this is shown by affidavits, uncontradicted, to be of the value of $10,000, the value of the subject-matter involved is sufficiently proven to warrant an extra allowance.
    Appeal by the plaintiffs, The Henderson Estaet Company and another, irom a judgment of the Supreme Court in favor of the defendant, entered in the, office, of the clerk of the .county of Dutchess on the 19th day of • June, 1905, upon the report of a referee, and also from an order"made at the Dutchess County Special Term, bearing daté the 13th day of May, 1905, and entered in said clerk’s office, granting the defendant an extra allowance.
    The plaintiff, The Henderson Estate Company, and the defendant are the owners of water privileges on the Matteawan creek, having a- common" grantor who conveyed the property now owned by the defendant on March 24, 1857, retaining the property now owned by said plaintiff; said conveyance contained the following reservation: “ Excepting and reserving the right to use the Clay Mill Pond as a reservoir for the purpose of flowage as heretofore for the benefit of the privileges below; ” and the following covenant: “ And ■these presents are upon the express condition so far as they convey the said Clay Mill lot, that the said party of the second part, his heirs and assigns, shall forever keep in "repair and good order the Clay Mill dam and make all necessary repairs and renewals of the same at his own proper cost and expense, for the, purpose of keeping the Clay Mill Pond in its present condition as a reservoir and for the. purpose of. flowage for the benefit of the privileges below.” The plaintiff, The Matteawan Manufacturing Company, is the lessee of the plaintiff, The Henderson Estate Company,'whose property is located below the defendant’s. At the time- of the said conveyance.an industry employing from thirty to forty employees^ and requiring a substantial amount of water power,, was conducted on the premises conveyed to-the defendant’s predecessor in title. The referee found that at no time prior to said conveyance had’the dam in connection with said property been used or maintained as a reservoir for the . purpose of flowage for the benefit of the privileges below, so as to interfere in any way with the industries conducted on said property, and that the property continued to be used without any interference from the owners or users of the power bélow. In the winter of 1863-4 said dam was washed out and destroyed, and was rebuilt in 1875, without any complaint or demand having been made by the owners of the property below in reference theréto. By mesne conveyances the defendant became the owner of said property in 1892, and it also acquired title to property on the opposite side of the creek, upon which its lighting plant is now constructed. In 1895 a new and larger dam" was erected below the old dam so as entirely. • to submerge the latter. As a usual thing there is sufficient water for all millowners and the operation by the defendant of its said plant does not interfere with the operation of the plaintiffs’ plant, but in times of drought therefis not sufficient water to operate to the full capacity the mills on the stream as now operated, and nearly all of these have installed auxiliary power. In times of drought the defendant uses the water power at night, opening its wheel at about six o’clock p. m., and running until the water is lowered in the dam to a- point from which the dam can be tilled by the ordinary flow of the stream by eight o’clock A. m., and it uses the water through the day only to such an extent as will leave the dam full at six o’clock p. m. The plaintiffs’ dam is not large enough to impound all of the water that passes the defendant’s wheel during the night, with the result that a large part of the water runs over the plaintiffs’ dam at night, and the flow of the stream during the day is so retarded that it does not get the full flow of the stream for more than a few hours. The referee has found that all of the factories on said stream, commencing with the property owned by the defendant, have from time immemorial used their water power by day or night to suit their convenience and need. One of the plaintiffs’ predecessors in title reconstructed the flume and wheel pit on its property and installed different wheels in 1864. The requirements of all of the factories on the stream have increased since 1857, and changes have been made in the method of operation. It appears from the evidence that the property now owned by the defendant that came from tlie common grantor, prior to 1857, while occasionally operated at night, was, as a rule, operated during the day. The referee has found that the defendant’s use of the water was at no time unreasonable or in violation of the provisions of thé deed from the common grantor.- It is inconvenient for the plaintiffs to operate their factories by night, and they seek in this action to enjoin the defendant from so operating its plant as to interfere with the normal flow of the stream to the plaintiffs’ property during the day.
    
      Edward S. Rapallo [ Willard Parker Butler with him on the brief], for the appellants.
    
      Allison Butts (John Hackett with him on the brief], for the respondent.
   Miller, J.:

The plaintiffs claim that they should succeed in this action upon two grounds,' first, because their rights as lower riparian owners have been invaded by the defendant; second, because the ’ rights 'reserved in the conveyance by the common grantor have likewise been violated..

- . As to thó riparian rights, the law seems to be settled in this State against the plaintiffs’ contention, as the doctrine of the leading case in Massachusetts (Gould v. Boston Duck Co., 13 Gray, 442) has been expressly approved and adopted by the Court of Appeals. (Clinton v. Myers, 46 N. Y. 511 ; Bullard v. Saratoga Victory Mfg. Co., 77 id. 525.) The appellants cite Strobel v, Kerr Salt Co. (164 N. Y. 303) and Pierson v, Speyer (178 id. 270), but the logic of these' cases is" that the maxim, sic utere tuo, ut álienum non Icedas, and the rule, agua currit ét débet currére, ut currére solebat, must be applied so as to" effect the highest average benefit to all the riparian owners, instead of absolutely precluding the beneficial enjoyment of any one.. Concededly some detention must Occur in order to accumulate the water sufficiently to furnish " any head for the generation of power,.and unless, each -millowner can cause such detention as a reasonable use may require, no one but the lowest on the stream could have any beneficial enjoyment thereof, and the test is- whether £he Use is reasonable, n'o.t whether possible injury may result. Certainly the court will not undertake" to - regulate ‘the hours during which the mill owners^ may operate their properties, especially in view of the finding of the referee, amply supported by the evidence, that it has been the immemorial custom of - millówners" bn the stream to operate both night and day according as it'suited their convenience. The defendant is entitled to the first use of the water by reason of .its- advantageous position on the stream.. Concededly its. requirements are not in excess of. the ordinary flow of the stream. Its use is, therefore, reasonable, as the referee has found, and if such reasonable use- results in some water escaping over the plaintiffs’ dam without being utilized the fault must be charged to the. inadequacy of their dam to impound the water, because so long as the defendant’s use of the water is reasonable it has the right during periods of extreme drought to detain it for a sufficient time to create a head, even though such detention results . in depriving the lower riparian owners; of the usual flow during some-periods of -the- day.These .conclusions are ahimdantlysustained; hy the authorities cited wym. •

The -question whether the;, defendant is-violating the rights reserved by the plaintiffs’- grantor in the -deed to' the defendant’s predecessor in title is more difficult of solution. The plaintiffs do not; claim-under the covenant to maintain the dam) practically conceding in their brief that an action for the -breach of such covenant would be barred by the Statute of Limitations. ' They only resort to such, covenant in aid of and for the purpose of interpreting.the reservation in the deed of the'right to. use the mill pond “ as a. reservoir for the purpose of flowage as heretofore for-the benefit of the privileges'- below.” There can be no doubt that this language was sufficient to reserve a privilege in the nature of an easement (Andrus v. National Sugar Refining Co., 72 App. Div. 551, and cases cited), and mere nonuser is not sufficient to work an abandonment of an easement created by grant, at least in the absence of. such-unequivocal acts or'conduct as shqw an intention to abandon. (Welsh v. Taylor, 134 N. Y. 450 ; White v. M. R. Co., 139 id. 19 ; Roby v. N. Y. C. & H. R. R. R. Co., 142 id. 176.) The difficulty, howéver, ¿onsists in determining just what rights were reserved, and in determining this question the restrictions in the deed ara to be construed strictly against the grantor. (Duryea v. Mayor, 62 N. Y. 592.) The plaintiffs contend that before the conveyance of 185-7 it had been the custom of the lower millowners to lower-the gate-at the dam in question whenever their necessities required- more water, but tlie referee, upon conflicting evidence, has ¡resolved this question in favor of the defendant, and we cannot sav that the finding is not justified by the evidence. His conclusion was that the parties intended to reserve nothing more than the right to have a .dam maintained, the dominant estate to. receive no benefit therefrom,, except as respited from the storage of the water and the use of such water as flowed over the- dam and through the wheels, but .the plaintiffs insist that even conceding this to be the correct interpretation, at least some privilege was reserved, and that a use of the property now in such manner as to interfere with the beneficial enjoyment of the plaintiffs’ property violates the right thus reserved.; It must be conceded that the us.e made by the defendant differs materially from that made of the property prior to the grant of 1857, but it is not clear that the parties intended to restrict the owner of the servient estate to the precise use made- of the property prior to. the grant. The parties may reasonably be supposed to have contemplated that, with new improvements, changes would occur in the method and extent of - such use, and such changes have been occurring over a period of forty-three years without a protest or suggestion from the plaintiffs or their predecessors in title that their rights were being invaded. It may well be that' the common grantor, by whose conveyance-the right in- question was reserved, supposed that the mere reservation of a right to have a dam maintained without any restrictions upon the use which the owner could make of it would furnish the flowage desired for the privileges below. There are no express words ^restricting the owner of the servient estate respecting its use of the dam, and there is -much force in the suggestion made by the learned referee-that it-is unreasonable to suppose that the grantee of a power designed to be used for. an important industry would consent that the use of such power be made entirely subservient to the use of others. The only words- in the deed descriptive of the use reserved aré the words “ as heretofore,” thus leaving the matter entirely dependent upon parol -proof, and while we are not prepared to say that the silence of the plaintiffs and their predecessors in title respecting the changes that have Occurred over a period of forty-three years lias-worked an extinguishment of the easement, such silence may be considered in determining the practical construction of the easement adopted by the parties themselves. (Hazleton v. Webster, 20 App. Div. 177 ; Mudge v. Salisbury, 110 N. Y. 413.) If the common grantor reserved nothing more than the right to have a dam maintained, the plaintiffs cannot complain. If it intended to restrict the use which the owners Of the dam could make of it so that such use should be subservient to the use of the grantor, apt language could have been used tó express such intention, and while we are not free from doubt respecting the intention of the parties, it is clear that such doubt must be resolyed against the plaintiffs-, who are invoking the extraordinary-power of the court to grant injunctive relief, as in such case - it is incumbent upon tlie plaintiffi to establish by convincing and satisfactory proof that some clear legal or equitable right is being violated. (Snowden v. Noah, Hopk. Ch. 347. See, also, Reid v. Gifford, Id. 416, and cases cited therein.) The plaintiffs are now attempting to claim a. right which they have not asserted for forty-three years, and while it is probably true that until the present method of operating the defendant’s factory was adopted, the plaintiffs’ property - was not injuriously affected by the changes that have occurred over said period, the plaintiffs’ difficulty consists of the fact that, to - define the rights now asserted, they have to depend upon parol proof of conditions existing^ more than forty-three years ago, as to „ which the referee has found against them upon evidence that, adopting the most favorable view to the plaintiffs, leaves the matter in doubt. Under such circumstances, the court will, not interfere .by injunction.

The plaintiffs also appeal from the order granting the extra allowance, and urge that there was no basis for such an order. The, subject-matter involved was the right of the plaintiffs to have the unobstructed flow of the stream,, and there is proof by affidavit uncontradicted, that this was of the value of at least $10,000. The difficult and extraordinary character of the action must be conceded, and we think the value of the subject-matter involved was sufficiently proven to warrant the extra allowance. (Hayden v. Mathews, 4 App. Div. 342 ; affd., 158 N. Y. 735 ; People v. Page, 39 App. Div. 110, 122.)

The judgment and order granting an extra allowance should be . affirmed, with costs.

Hirschberg, P. J., Woodward, Gaynor and Rich, JJ., concurred.

Judgment and order granting extra allowance affirmed, with costs.  