Opinion
May Term, 1903.
Charles C. Marshall and Stephen G. Williams, for the appellants.
J.B. McCormick, for the respondent Granville Electric Light and Power Company.
John Gilroy and J. Sanford Potter, for the respondent The Village of Granville.
Concededly the defendant the Granville Electric Light and Power Company is, for a consideration paid to it, pumping water from this stream sufficient to furnish the village of Granville with its daily supply, and it is under contract to continue to so pump all that the village may require for a period of ninety-nine years from 1885. Concededly its only right to the use of the water in such stream is that of a riparian owner, and so the first question presented is whether a riparian owner, as such, has the right, as against a lower riparian owner, to divert from their natural flow the waters of a stream, or any portion thereof, and sell them to another for a compensation paid him. The respondents seem to claim that unless such diversion substantially injures the lower owner, such right exists, or at least that a court of equity will not interfere to prevent it.
The decisions, however, in this State are distinctly opposed to such a claim. ( Corning v. Troy Iron Nail Factory, 40 N.Y. 191; Smith v. City of Rochester, 92 id. 463; New York Rubber Co. v. Rothery, 132 id. 293; Amsterdam Knitting Co. v. Dean, 162 id. 278, 280; Strobel v. Kerr Salt Co., 164 id. 303.) The upper riparian owner is entitled to a reasonable use of the water as it flows past his premises, but such use, I apprehend, does not exceed that which is needed for, or beneficial to, the use of such premises. It does not extend to a sale and diversion of the same to the benefit of another. Such a diversion utterly transcends the rights of a riparian owner. It is an unlawful interference with the natural flow of the water, and hence an unlawful interference with the lower riparian owner's rights. (28 Am. Eng. Ency. of Law, 955.) This principle I think is clearly established by the Strobel case, above cited.
And if this action had been between the plaintiffs and the electric company, merely, and the water had been sold and diverted by it for the benefit of a private individual only, it is probable that such rule would have been recognized and enforced by the trial court. But the diversion being of so small a percentage of the natural flow, and being applied to the water supply of a village, it is urged that it is inequitable to apply such rule in favor of the plaintiffs, whose injuries are so very slight as to be practically nothing.
This right of a riparian owner to have the waters of a stream flow in their natural channel and in their natural volume, and to ask the aid of a court of equity to secure to him the enjoyment of such right, exists against a village the same as against an individual; and the facts which would establish such a right against the individual should be sufficient to secure its protection against a village, however much the necessities of the village require that the waters of the stream be diverted. It is a question of right, and by dismissing the complaint in this case the trial court has, in effect, decided that the plaintiffs' rights have not been invaded. However trifling their injuries may have been, it seems to me, under the decisions, very clear that they have a substantial right to have the water which is thus diverted flow in its natural channel, and no judgment should have been rendered which denies them that right. If the public necessity of the village of Granville requires that the water be daily diverted from such stream, it has a plain method of securing such right by condemnation. If the damages which it would have to pay the plaintiffs for such a diversion are trifling, so much the better for the village. From the evidence, it seems that the plaintiffs would hardly miss the 200,000 gallons which the village is now daily using, and that they are ungenerously insisting upon a technical right, rather than seeking to protect themselves against an injury; yet it is not entirely clear that they might not, by acquiescing in the performance of the contract by the electric company for a year or two longer, lose entirely the right to prevent the diversion contemplated therein, however much it may be increased and however much it may hereafter result in their injury. The rights of both parties are best protected by recognizing them as they actually exist, and requiring the village to respect them. The trial court had the power to grant the injunction, and thus recognize and secure to the plaintiffs their plain rights as riparian owners, and at the same time, in its discretion, suspend the operation of the injunction until the village could, with reasonable diligence, acquire such rights from the plaintiffs, either by purchase or condemnation proceedings. ( Sammons v. City of Gloversville, 34 Misc. Rep. 459; affd., 67 App. Div. 628.) Such discretion is best exercised by the trial court. I am of the opinion, therefore, that this judgment should be reversed and a new trial granted.
All concurred; SMITH and CHASE, JJ., in result.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.