New York Rubber Co. v. Rothery

The defendants claim two answers were made to the plaintiff’s case, each of which was fatal to a recovery herein. ’

One answer was that the use made by the defendants of the water in the stream was not unreasonable or illegal, or in any way inconsistent with the rights of the plaintiff. The defendants say that plaintiff’s lots are on the opposite side of the stream from their land, and that no machinery can be placed on the lots, to be propelled by water, as plaintiff has no land upon which to erect a dam, and there is no fall in the stream between the bridge and defendants’ tail race, so that the only use the plaintiff could have for the water in the stream is for domestic purposes, and there being, as they claim, always water in the stream by the plaintiff’s lots for such purposes, its rights as a riparian owner have not been injured.'

The difficulty with this statement is that there is evidence in the case which tends to contradict it, and which tends to show that the use made by the defendants of the water in the creek was such that at various times the quantity which would otherwise have flowed past plaintiff’s lots was perceptibly and materially diminished, and to such an extent that frequently when the water was running through the tail race of defendants there was none running over or through the dam except leakage, and of course none flowing past the plaintiff’s lot, the whole substantial part of the water of the stream going through defendants’ tail race instead of down its original and natural channel. There is evidence tending to show that the water was not returned to the stream in time to reach that part of the plaintiff’s lot which it would otherwise naturally touch.

We do not assume to say this evidence is true. But it raised an issue which the plaintiff was entitled to have decided by the jury unless there was some other defense to the action.

It may be assumed that at the time when the defendants built their mill-race and erected expensive buildings for manufacturing purposes, Ruth J. Smith was the owner of the lots in question, and which are now owned by the plaintiff.

The estoppel is based upon the following facts: The defendants built the mill-race upon their own lands and erected their factory also upon their own lands, which factory was to be supplied with water from the stream carried through this millrace. While Ruth J. Smith was thus the owner of the lots and while the defendants were building this mill-race on their own lands, she saw defendants and their men at work on it and on the factory, and she understood the race was being built to take water from the stream to the shop, and during all the time it was in course óf construction she never objected to it in any way or authorized any one to object to it for her, nor did she at the time object to the defendants carrying the water down the race.

These are all the facts upon which an estoppel is claimed and upon which the le'arned courts below decided that an estoppel existed. They are not sufficient to authorize the presumption of a grant or oven a license (Haight v. Price, 21 N. Y. 241 ), and defendants must rest their defense upon an estoppel pure and simple. It will be seen there is no element of fraud in the case, nor any evidence that Mrs. Smith led the defendants into making this outlay on any assumption that they had the right to do it when in truth they had not and she knew it and yet induced them to go on and expend their moneys upon such erroneous assumption. Rothing of the sort is pretended. The simple case is presented of an owner of land standing by and seeing an owner of adjoining land make

The counsel referred to Town v. Needham (3 Paige, 545); Thompson v. Blanchard ( 4 N. Y. 303 ); Brown v. Bowen (30 id. 519); Corning v. Troy Iron and Nail Factory (40 id. 191). The first case, that of Town v. Needham, simply enforced the well settled rule of eqmty that where the owner of real estate suffers another to purchase the estate from a tliird person, and to erect buildings thereon under the erroneous belief that he has a good title, and such owner permits the purchaser to conclude his purchase and intentionally conceals from him his title to the property, the owner will not after-wards be permitted to enforce Ms title against such purchaser. In Thompson v. Blanchard the same doctrine is held applicable to personal property. Brown v. Bowen holds the same principle, the same element of concealment on one side and mistake of fact on the other, being present. To the same effect is Trenton Banking Company v. Duncan ( 86 N. Y. 221 ). The English rule is substantially the same. (Ramsden v. Dyson, L. R. 1 H. L. Cas. 129.) Corning v. Troy Iron and Nail Factory is really an authority for the position taken by the plaintiff here, that no estoppel can be predicated upon the facts in this case.

There is no pretence that the defendants did not know their

The judgment of the General Term and of the circmt should be reversed and a new trial granted, costs to abide event.

All concur.

Judgment reversed.