Opinion
March 9, 1949.
Present — Taylor, P.J., McCurn, Love, Vaughan and Kimball, JJ. [See 276 App. Div. 818.]
Judgment modified on the facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Certain findings of fact and conclusions of law disapproved and reversed. Memorandum: In our view, the evidence supports the findings made by the Official Referee to the effect that the acts of the defendant in changing the course of Elm Brook caused large quantities of gravel to be carried from the bed thereof and deposited in the channel of Little Conewango Creek, thus retarding the natural flow of the waters of the creek, raising the level thereof, and preventing the natural drainage of waters from plaintiffs' farms, to the damage of each farm in the sum of $1,000. We think, however, that on this record no injunctive relief should have been granted against the defendant. The defendant, upon receiving the notice given by plaintiff Dalrymple pursuant to section 341-b of the Village Law and before the commencement of these actions, restored both streams so far as was reasonably possible to their natural conditions. Elm Brook was returned to its natural course and the channel of Little Conewango Creek was opened, and defendant does not threaten interference with either stream in the future. All concur. (The judgment is for plaintiffs in injunction actions, consolidated by court order.)