Opinion
Argued June 26, 1882
Decided October 10, 1882
H.H. Hustis for plaintiff.
A.S. Cassedy for defendant.
It was conceded by the defendant on the trial that its dam set back the water on the plaintiffs' mill, and no prescriptive or other right to flow the plaintiffs' premises is claimed. The only controverted question was one of fact, as to the extent of flowage caused by the dam. The trial judge found that the dam was fifteen inches higher than it should be, having reference to the plaintiffs' rights. This was equivalent to a finding that the dam raised the water fifteen inches on the plaintiffs' premises. It is insisted that there was no evidence that a flowage to that extent was caused by the dam, and this is the main point presented by the defendants' appeal. We think the point is not tenable. * * * * * * There is no objection to the form of relief given by the judgment. It having been determined that the erection and maintenance of the dam at its present height was unauthorized, and an invasion of the plaintiffs' rights, the court was authorized to render a mandatory judgment, requiring the defendants to lower the dam. ( Hammond v. Fuller, 1 Paige, 197; Corning v. The Troy Iron Nail Factory, 40 N.Y. 192.)
The portion of the opinion omitted is simply a consideration of the evidence upon the question of flowage.
The appeal by the plaintiffs from the order of the General Term, striking out the extra allowance of $250, and the sum of $94 allowed for engineer's fees, maps, surveys, etc., included in the judgment is not well taken. We concur in the opinion of the General Term upon this question, and the case of Mark v. The City of Buffalo ( 87 N.Y. 184) is a recent authority of this court upon the question of allowance to experts.
The judgment and order should be affirmed, without costs to either party on this appeal.
All concur, except TRACY, J., absent.
Judgment and order affirmed.