Majority
Judgment affirmed, with costs. Appeal by the plaintiff, Harvey Cook, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 23d day of November, 1891, upon the verdict of a jury directed by the court after a trial at the Saratoga County Circuit, and also from the order directing a verdict for the defendant and dismissing the plaintiff’s complaint upon the merits.—
After a somewhat careful examination and consideration of the evidence in this case, I can see no reason to reverse the action of the court below. Without discussing the evidence it strikes me that the evidence as to whether the new dam was erected higher than the old one, preponderates largely in favor of the defendant, and a finding of the jury to the contrary could not be sustained. It appears to be uncontradicted that the top of the dam was five feet lower than the water of Saratoga lake; that being a fact, I do not see how the dam could cause the water to rise in Saratoga lake. It further appears that the water running over Winne’s reef, which is above the dam, and between it and the lake, has some considerable current to it, and if the water set back from the dam so as to cause the water to rise in the lake, it is difficult for' me to conceive that there would have been any perceptible current at Winne’s reef. The water above the reef appears to have been considerably higher than the water below the reef, which I cannot conceive to be possible if the erection of the dam caused the water of Fish creek to set back to Saratoga lake, so as to raise the water there; that would stop the current in the creek. While it is doubtless true that there has been a gradual rise in the waters of the lake, I fail to see that the evidence shows that the dam is responsible for it. Judgment should be affirmed, with costs. I see no reason to write an opinion.
Mayham, P. J., concurred; Putnam, J., not acting.