By the weight of authority, where a water course is polluted to such extent as to create a nuisance therein, such nuisance is a public one, and no right to continue same can he acquired by prescription. Mayor of Birmingham v. Land, 137 Ala. 538, 34 So. 613; Nolan v. New Britain, 69 Conn. 668, 38 A. 703; Platt v. City of Waterbury, 72 Conn. 531, 45 A. 154, 48 L.R.A. 691, 77 Am.St.Rep. 335; Lewis v. Stein, 16 Ala. 214, 50 Am.Dec. 177; People v. Gold Run Ditch Mining Co., 66 Cal. 138, 4 P. 1152, 56 Am.Rep. 88; Bowen v. Wendt, 103 Cal, 236, 37 P. 149; Weeks-Thorn Paper Co. v. Glenside Woolen Mills, 64 Misc.Rep. 205, 118 N.Y.S. 1027, 1034; Woodyear v. Schaefer, 57 Md. 1, 40 Am.Rep. 419; Meiners v. Frederick Miller Brewing Co., 78 Wis. 364, 47 N.W. 430, 10 L.R.A. 586. For additional cases, see 46 A.L.R. note O, p. 69 et seq.

These cases from different states do not support an argument that this is the law in New York. Even a cursory review of the New York cases reveals that this is not the law in this state. See, e.g., Bremer v. Manhattan Ry. Co., 191 N.Y. 333, 341 (1908) (holding that "[defendants' conduct] was therefore a public nuisance, and prescription could not justify it even as against a private person"); Mills v. Hall Richards, 9 Wend. 315 (N.Y.Sup.Ct. 1832) (stating "[t]here is no such thing as a prescriptive right or any other right to maintain a public nuisance" and the existence of defendants' dam for over 20 years "can be no defence to a proceeding on the part of the public to abate it, or to an action by any individual for the special and peculiar injury which he may have suffered from it"); Weeks-Thorn Paper Co. v. Glenside Woolen Mills, 118 N.Y.S. 1027, 1032 (N.Y.Sup.Ct. 1909) (finding no prescriptive right to maintain "nuisances which are public and which at the same time cause special damage to private individuals"); Van Cortlandt v. New York Cent. R. Co., 265 N.Y. 249, 262 (1934) (stating, "this lapse of [40 years'] time may not preclude the plaintiffs from maintaining an action to enjoin the continuance of a public nuisance when they are suffering special and peculiar damage different from the public generally"); Jones v. Breyer Ice Cream Co., 1 A.D.2d 253, 255 (N.Y. 1956) (stating, "`[a] prescriptive right may be acquired, as against the rights of a private individual, to pollute the waters of a stream to a greater extent than is permissible of common right. But if the use of a stream by the upper proprietor is such as to constitute a public nuisance, or if the use is unlawful or forbidden by statute, no prescriptive right can be acquired even as against lower proprietors on the stream'") ( quoting 2 Farnham on Waters and Water Rights, § 521). Defenda

We think that the suggestion has two answers: (1) A city can not, by prescription or lapse of time, acquire the right to maintain a nuisance. Corsicana v. King, 3 S.W.2d (Tex.Civ.App.), 857; Weeks-Thorn Paper Co. v. Glenside Woolen Mills, 64 Misc. Rep. 205, 118 N.Y. Supp. 1027; State v. Rabinowitz, 85 Kan. 841, 118 P. 1040, 39 L.R.A. (N.S.) 187; Shelby v. Cleveland Mill Power Co., 155 N.C. 196, 71 S.E. 218, 35 L.R.A. (N.S.) 488, Ann. Cas. 1912C, 179; 6 McQuillin, Municipal Corporations (2d ed.), § 2880. (2) The evidence shows that the city has, from time to time and recently, increased the amount of sewage and garbage which found its outlet into the waters of Flett creek. Excess of pollution produced by the continuation of a nuisance is subject to injunctive process.

It does not avail the city as a defense that other upper riparian owners may have contributed to the pollution. ( Strobel v. Kerr Salt Co., supra, p. 322; Weeks-Thorn Paper Co. v. Glenside Woolen Mills, 64 Misc. 205, 207; affd., 140 App. Div. 878; affd., 204 N.Y. 563; Butler v. Village of White Plains, 59 App. Div. 30, 35.) The argument of the defense proceeds upon the theory that as the State owns the bed of the Niagara river it had the power to authorize the act of which the plaintiff now complains and that the statutory authority thus given affords immunity to the city for the damages, if any, inflicted upon the plaintiff's property.