Stanton v. New Rochelle Water Co.

This is an appeal from a judgment at a special term of this court entered in the office of the clerk of Westchester county on March 5, 1895. The action was commenced om August 22, 1894, and was brought for the purpose of enjoining and restraining the-defendant from obstructing the natural flow of a nonnavigable stream of fresh water, known as “Hutchinson Creek,” which runs in a southerly direction through portions of New Rochelle, Pelham, and Bastchester, and from diverting the water from the channel of the stream, except for such uses on defendant’s premises as are usual and proper for upper riparian owners. The plaintiff

It seems to me plain, from the evidence in this action, that the judgment should have been the other way. The defendant is á waterworks company, organized under the laws of this state for the formation of waterworks companies, for the purpose of supplying water to the village of New Rochelle; and the purpose of these dams was to make the reservoir to hold water for sale to the customers of the defendant. The general rule of law is that the owner of land through which a stream of water runs has a legal right to the usual and natural flow of the water across his premises, of which he cannot be deprived without his consent or just compensation, subject, of course, to the right of the upper riparian owner to use water for his own domestic - purposes. The right to a stream of water is as sacred as the right to the soil over which it flows. It is a part of the freehold, of which no man can be disseised but by lawful judgment of his peers, or - by dpe process of law. Gardner v. Trustees, 2 Johns. Ch. 162 ; Scriver v. Smith, 100 N. Y. 471 -480; City of Syracuse v. Stacey, 86 Hun, 441 ; 67 St. Rep. 719 ; Washb. Easem. 276; Ang. Water Courses, § 596. “Though the legislature has power to take private property for useful and necessary purposes, it is bound to provide a fair compensation to the individual whose property is taken; and, until such indemnity is afforded to the party, that power cannot be exercised legally.” Gardner v. Trustees, supra. It is not competent for the defendant .or the court to determine yrhat amount of water was needed by the plaintiff, for she was entitled to the whole of it, except what was used by the defendant for ordinary purposes. Undoubtedly, the defendant had the right to build dams upon his own lands, and to store water, but that does not carry the right to divert the water from its natural course. It appears from the evidence that 212,000,000 gallons were annually diverted and sold by the defendant. This evidence is not disputed in the case. That was quite a large proportion of all the water that ran is said stream. It is true that at some seasons of the year the water flowed over the dams so as to supply all that was needful to the plaintiff below; but the storage of the water, and its sale at other seasons of the year, made the stream nearly or quite dry on the defendant’s land. The case of Rubber Co. Rothery, 132 N. Y. 293 -296; 44 St. Rep. 557 , it seems to me, is decisive of this case. In that case the court went so far as to hold . that the title of the riparian proprietor to his water rights in a

We also think the amount of watershed of the two parties to this suit was not material evidence upon the issues of this case, and that its admission was error. The plaintiff was not limited in her use of the water by the fact that the defendant owned more watershed than she did. She was entitled to the beneficial use of all the water that flowed in the stream, except such as was reasonably used by the defendant. The rights of the parties did not at all depend upon the amount of watershed owned by them. The lower riparian owner had a right to all the water that ran in the stream, except such as the defendant had a right to reasonably use for its own purposes.

There are numerous exceptions in this case; but the law seems to be well settled. The plaintiff is not limited in her use of the water as she has been accustomed to use it, but she has a right to bring an action for the impairment of such prospective use she might reasonably make of the water. It is perfectly plain that here was a material diversion of a stream of water which would naturally run through the plaintiff’s premises. The plaintiff, having established the right and shown that it was invaded, was at least entitled to nominal damages, which would have carried costs.

Judgment reversed and new trial ordered, costs to abide the event.