p. 449by a dam built across tbe stream by tbe defendant. Tbe defendant bad condemned tbe stream in a proceeding to which tbe lessor and owner of tbe premises, but not tbe plaintiff, was made a party. Tbe evidence tended to show that about 1,000,000 less brick were manufactured than could have been manufactured if tbe water supply had not been diverted by tbe defendant.
Tbe court instructed tbe jury that tbe true measure of damages was the brick tbe plaintiff could not make by reason of stoppage on account of diminution of water; that tbe value was to be taken at tbe machine where tbe water was to be used; tbe value of tbe brick she was prevented from making.
Held, that tbe court erred in so charging, as tbe rule gave tbe value of the brick and did not deduct tbe value of tbe clay.
That, as it was manifest that tbe plaintiff’s injury was in tbe failure to receive the profits upon 1,000,000 of brick more than she made, it would not be a just rule which gave her tbe value of these 1,000,000 of brick while tbe clay remained in tbe bank and tbe brick was never made at all.
Tbe proper rule is tbe diminished rental value of the premises for tbe purpose of tbe business, during tbe period of diversion.
Appeal from a judgment entered in tbe office of tbe clerk of Dutcbess county, on June 16, 1888, after a trial at tbe Dutcbess County Circuit, and from an order denying a motion for a new trial made on tbe minutes of the justice presiding at tbe trial.
H. H. BTustis and O. B. Herriolc, for tbe appellant.
Samuel K. Phillips and M. A. Fowler, for tbe respondent.
The plaintiff was tbe lessee of one Gurnee, of brick-yard premises situate in Bishkill, Dutchess county. During tbe continuance of tbe lease tbe defendant, a corporation for conducting pure and wholesome water to JJatteawan and vicinity, condemned a stream of water which, in part, ran by the premises so held under lease by tbe plaintiff, and built a dam across it. Tbe plaintiff was manufacturing brick and needed tbe water to moisten tbe clay, and for various other purposes connected with brick manufacturing. Tbe consequence was that tbe plaintiff had to stop her works some twenty-five days for want of water. In tbe condemnation proceedings tbe plaintiff was not made a party, but tbe lessor alone was compensated by the award of tbe commissioners. The evidence tended to show that about 1,000,000 less brick were manufactured than could have been manufactured if the water supply bad not been diverted
p. 450by tbe defendant. Proof was offered to show that the plaintiff conld have used the water from the Hudson river, which bounds the yard on the west with equal facility, and with as good results as this water from the stream. This evidence was rejected. The court instructed the jury that the true measure of damages was “ the brick she could not make by reason of stoppage on account of diminution of water; and that value is to be taken at the machine where the water was to be used; the value of the brick she was prevented from making.” Two questions are thus presented: Must the plaintiff adapt the business to the changed condition of things by reason of the condemnation ? if she can thereby lessen the damage, and was the rule of damages right ? Both questions are answered, if the rule of damages was wrong. The evidence does not, as I read it, show any loss of material. The clay was dug out of the bank, and lay thus as clay because of a want of water to moisten it. When water comes the clay is pressed into brick, and the value of the brick in the green state included the clay. The rule gives the value of the brick, and did not deduct the value of the clay. It is manifest that the plaintiff’s injury was in the failure to receive the profits upon 1,000,000 of brick more than she made; but it would not be a just rule which gives her the value of this 1,000,000 brick while the clay remained in the bank, and-the brick was never made at all. The proper rule, as stated by the Court of Appeals in a case of this kind, is: “ The diminished rental value of * * * the premises for the purpose of that' business during the period of diversion.”
(Ann Colrick v.
Swinburne, 105 N. Y., 503 ;
Cassidy v. LeFevre, 45 id., 562 ;
Francis v.
Schoellkopf, 53 id., 152.) This rule as to the measure of dainages would require the introduction of the evidence offered as to the Hudson river water. If the diminution of rent is the rule, the premises as they are after the diversion of the stream is the subject of the rent; and that includes, the Hudson river water, if as good and as easy to obtain as the diverted stream.
The judgment should, therefore, be reversed and a new trial granted, costs to abide event.
Pkatt, J., concurred; DyKMAN, J., not sitting.
Judgment and order denying new trial reversed and new trial granted, costs to abide event.