Opinion
July 2, 1941.
Plaintiffs have the record title to a one-quarter interest in the premises involved in this action, and the defendants Chahoon have the record title to the other three-quarter interest. Plaintiff brought this action against defendant New York State Electric Gas Corporation and defendants Chahoon because of the diversion of the waters of the Ausable river from their natural channel in front of plaintiff's premises. On the trial defendants contended that the plaintiffs' deeds are champertous and also that the defendants are the owners of the entire property by adverse possession. The trial court found that the defendants failed to sustain these allegations as to those defenses. The evidence justifies the conclusion of the trial court. The trial court rendered judgment in favor of the plaintiffs, restraining the defendants from diverting the waters but suspended the operation of the judgment indefinitely. The trial court also failed to find that plaintiffs are entitled to damages by reason of the diversion of the waters. Plaintiffs are entitled to damages. The case should be remitted to the trial court to ascertain and fix the damages to which the plaintiffs are entitled. The injunction should be suspended for a period of one year for that purpose. If the time is not sufficient, then an application may be made to this court to suspend the injunction for such additional time as may be necessary. The judgment as thus modified is affirmed, with costs to the plaintiffs. Hill, P.J., Crapser, Bliss, Heffernan and Foster, JJ., concur.