H. Remington & Son Pulp & Paper Co. v. Water Commissioners

Majority

p. 975

(111 App. Div. 907)

H. REMINGTON & SON PULP & PAPER CO. v. WATER COM’RS OF CITY OF WATERTOWN.

(Supreme Court, Appellate Division, Fourth Department.

January 3, 1906.)

Headnote

Waters and Water Courses—Erection oe Dam—Injuries to Property.

In an action to recover for injuries to property by the erection of a dam, the rights of the parties are to be governed by the ordinary stage of water, and not by “low and medium waters.”

Appeal from Trial Term, Jefferson County.

Action by the. H. Remington & Son Pulp & Paper Company against the water commissioners of the city of Watertown. From an interlocutory judgment for plaintiff, defendant appeals.

Reversed.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and NASH, JJ.

Arthur L. Chapman, for appellant.

Joseph Atwell, for respondent.

It seems to be conceded that the crest of the defendant’s dam is 2.77 feet above the level of the average flow of the water at the property line of the plaintiff, instead of that height above the level of the water at the point where the plaintiff proposes to erect its dam, as erroneously found in the eleventh finding of fact. The finding is based upon the levelings taken of the average minimum flow of water; whereas, the rights of the parties are to be governed by the ordinary stage of the water. The finding that “such backing of

p. 976

the water greatly reduced the plaintiff’s head at said site, so that in low and medium water the power will be seriously diminished,” erroneously implies that the rights of the parties may be based upon “low and medium water,” instead of the ordinary flow.

The seventh finding of fact, determining the head or ,height of the fall of water which could be produced at the proposed site for a dam, is also based upon the erroneous figures found in said eleventh finding, as is also the rest of this finding. The facts found in said seventh finding of fact, and in the eighth, and the second, third, fourth, and fifth paragraphs of the eleventh finding of fact, are matters which should be passed upon and determined upon a reference or by a commission in assessing the damages which the plaintiff has and will sustain, if any, by reason of the construction and maintenance of the defendant’s said dams at their present height, and the same should therefore have been omitted from the findings as a basis of an interlocutory judgment. While it is unfortunate that a new trial of this case should be had, still we see no other way to dispose of it, unless the parties stipulate to correct the errors referred to.

Interlocutory judgment reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.