Meveigh v. International Paper Co. — 109 N.Y.S. 574

Majority

p. 574

MEVEIGH v. INTERNATIONAL PAPER CO.

(Supreme Court, Appellate Division, Third Department.

March 11, 1908.)

Headnote

Waters—Dams—Maintenance—Judgment—Definiteness of Determination.

A judgment which prohibits the maintenance of a dam at a height that would cause the pond to extend, at the natural flow, beyond a certain point, is not void for indefiniteness.

Appeal from Trial Term.

Action by George R. Meveigh against the International Paper Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

R. P. Anibal (Fred Linus Carroll and Andrew J. Nellis, of counsel), for appellant.

H. D. Wright, for respondent.

The judgment should not be reversed on account of its indefiniteness. It prohibits the maintenance of the dam at such a height that, during the natural flow of water, it would extend the pond created by the dam into the lake.' The moment the height of the water at the natural flow in the lake is determined, then the judgment becomes definite and certain; and it is a matter that can be easily established from time to time what the natural flow is. That being determined the prohibition against the defendant is definite. The dam is to be regulated by the. conditions existing during the natural flow. If the defendant maintains it according to such conditions, it apparently is not responsible for results from an extraordinary or excessive flow.

The other points raised have been considered, and the judgment should be unanimously affirmed, with costs.