Smith v. City of Rochester

The decision below was affirmed on the foregoing opinion of Rumsey, J., the following dissenting opinion being delivered at. General Term, by

(dissenting):

It appears from the stipulated facts that the plaintiffs have suffered no damage by reason of the diversion of the water by the defendant; but, on the contrary, they have been furnished with a more constant and uniform supply of water than they had before had, and that the defendant purposes in the future to continue to furnish them a more constant and uniform supply of water for their mills than existed before it commenced to draw water from Hemlock lake. The question is thus sharply presented as to whether this action can be maintained, when the plaintiffs have suffered no damage, and none is expected to result in the future, from the use of the water made by the defendant. This case has been once considered by the Court of Appeals and a new trial was granted, it then being held, among' other things, that the evidence upon the former trial tended to show that plaintiffs were injured by the diversion of water complained of. (Smith v. City of Rochester, 92 N. Y., 463.)

The case of Webb v. Portland Manufacturing Company (3 Sumn., 189) is the authority chiefly relied upon by the respondents and the court below, to support the judgment. The opinion was written by Justice Story, and because of his great learning and eminence as a judge, I have hesitated about questioning the rule as laid down by him. In view of the fact that the result reached by him is not in accord with what 1 have supposed to be the law, I have examined to some extent the authorities upon which he relies. In that case the plaintiff and defendants were owners of different mills in severalty on the same mill- dam. The defendant opened a *619canal into the pond at some distance above the dam, and supplied his mill with water through the canal. It was held that the defendant was not entitled to his proportion of the water until it arrived at the dam, and that although the plaintiff had suffered no damage,, he was entitled to maintain the action.

In the case of Young v. Spencer (10 Barn. & Cres., 115), relied upon by Story, J., the action was brought by the owner of a house against his lessee, for cutting an opening in the building for a new door, whereby it was claimed that the house was weakened and injured. The jury found that the lessee did cut the opening without leave, but that the house was not in any respect weakened or injured. The judge thereupon directed a verdict to be entered for the plaintiff for nominal damages. So that this case would appear to be in conflict, rather than a support to the proposition contended for. In the case of Marzetti v. Williams (1 B. & Adol., 415), the action was to recover damages against a banker for refusing payment of a check drawn by a customer after he had received ' sufficient funds to pay the check. The check was not paid until the next day after the demand. It was held that the plaintiff was entitled to recover nominal damages, and the authorities relied upon were to the effect that where a wrong is done, by which the right of the party may be injured, there is a good cause of action, although no actual damage be sustained. It will be observed that here is an important distinction made which is, that a wrong is done by which the right of a party may be injured. With this distinction in mind there is not much difficulty in harmonizing the numerous eases appearing in the books. A landlord has the right to visit the premises occupied by his lessee for the purpose of inspecting and preserving and seeing whether waste has been committed, by depriving him of this right he map be imjwed. An elector has the right to have his vote taken and counted at an election, by refusing him this right he may suffer injury. With this qualification I have no further question in reference to the rule as declared by Justice Story. In the case of Wilts and Series Canal Navigation Company v. Swindon Water-Works Company (9 Chan. App. Cases, 451), the plaintiff, a canal company, had the right to supply their canal with water from the neighboring stream. The defendant, the Water-Works Company, *620•diverted a part of the stream, and thereby supplied with water the neighboring town. It appeared on the trial that during a severe drought the canal was so insufficiently supplied with water that traffic upon it was stopped for several weeks. An injunction was granted to restrain the defendant from diverting the water “ so as to interfere with the supply of water requi/red by the plaintiffs for the navigation of the canal.” In other words, the defendants were enjoined from diverting the water to the damage of the plaintiffs. In the case of Kensit v. The Great Eastern Railway Company (27 Chan. Div. Cases, 122), the defendant owned land upon which their railway was built which crossed the stream over a culvert. One Robert Free had land adjoining that of the railroad company, but not •abutting on the stream. Under a license from the railway company he put a pipe through the land of the company to his own premises by means of which he pumped water from the stream to his factory, used it for cooling and ^condensing purposes and then returned it to the stream through another pipe, discharging it in the stream six feet below the place where it was taken from the stream. The’ plaintiff was an abutting owner of land upon the stream, below the j railway’s lands. .He brought action to restrain the defendant from so using the water. It was held that although the defendant had no right to grant the use of the water to Free, still, inasmuch as the plaintiff sufEered no damage, the action could not be maintained and the bill was dismissed, thus affirming the same case in 23 Chancery Div., 566. In the case of Earl of Sandwich v. Great Northern Railway Company (10 Chan. Div., 707), the defendant, a railroad company, whose land crossed a stream in the immediate neighborhood of one of their stations, took water from the stream for the purpose of supplying their engines and for the general purposes of the station. The defendant, a mill owner, lower down the stream, brought suit for an injunction to restrain the defendant from diverting the water. It was held that the company as riparian owners were entitled to take a reasonable quantity of water for their purposes, that the quantity taken was reasonable, did not reduce the depth of the water flowing in the stream one-fifth of an inch and did not cause the defendant any perceptible damage. Bacon, N. C., in his opinion, says: “Is that a case in which, if there is nothing else in it, the *621plaintiff could ask in this court for an injunction ? What injunction is he entitled to? Is there any damage done him?' It is not pretended that there is any damage done to him. * * * The evidence which I have before referred to satisfies me that the plaintiff’s complaint is wholly unreasonable, and that the defendants have done nothing which the law does not entitle them to.” The complaint was dismissed with costs. In the case of Elliot v. The Fitchburg Railroad Company (10 Cush., 191) it was held that one riparian proprietor cannot maintain an action against an upper proprietor, for the diversion of part of the water of a natural water-course flowing through their lands, unless such diversion causes the plaintiff actual perceptible damage. The opinion in this case was written by Chief Justice Shaw, in which he-says: “ The plaintiff contended that, if the jury were satisfied of the existence of the brook as alleged, and the diversion of the-water therefrom by the defendants, he was entitled to a verdict for nominal damages, without proof of actual damage. But the presiding judge instructed the jury that, unless the plaintiff suffered actual perceptible damage in consequence of the diversion of the-defendant, the defendants were not liable in this action.” In connection with this instruction, the judge further instructed the jury, that “if they believed that the defendants, by excavating said reservoir and spring above the dam, or that said Clark, by digging said ditches, had increased the flow of water of said brook equal to the quantity of water the defendants had diverted therefrom, then the-defendants are not liable in this action. The whole court are of the opinion that this direction was right in both particulars.” The case of Garwood v. The New York Central and Hudson River Railroad Company (83 N. Y., 400), the plaintiff, a mill owner on Tonawanda creek, brought an action against the defendant to restrain it from diverting the waters of the stream, at its station in Batavia, for the purpose of supplying its locomotive engines with water, etc. Issues were formed, and the controverted questions of fact were tried before a jury. The jury found that the defendant had so diverted the water of the creek as to perceptibly reduce the volume of water flowing therein, and to materially reduce or diminish the grinding power of the plaintiff’s mill. It was held, in consequence thereof, that he had sustained damages to a substantial *622amount, and that an injunction should issue, restraining the defendant from diverting the water “to the injury of the plaintiff.” Danfohth, J., in writing the opinion of the court, quotes approvingly from the cases of Elliott v. The Fitchburg Railroad Company and the Earl of Sandwich v. The Great Northern Railroad Company (supra).

It thus appears to me that the rule is that as to upper and lower riparian owners, each has a right to the ordinary use of water flowing past his land, for domestic purposes, without regard to the ■effect that it may have upon the lower owner. That it may also be used for other purposes, if not to the injury or damage of the lower riparian owner. That in order to entitle the lower riparian owner to maintain ah action for an injunction, he must show either that he has been damaged by the improper diversion of the water or ¡that there is reason to apprehend that he may be injured by such ■diversion. The city of Buffalo pumps water for its use and that of its inhabitants from the Niagara river. There are mill owners below at Black Rock, Tonawanda and Niagara Falls. A vast body of water constantly passes through the river, forming a swift current, furnishing an ample supply for all of the lower mill owners, so that no possible damage can ever result to them in consequence ■of the water pumped out of the river by the city. To give mill ■owners the right to maintain an action for an injunction, under such circumstances, would be. unreasonable and unjust. The illustration serves to make clear the wisdom of the rule which I contend is established by the cases cited.

As to the case under consideration, it appears that the city of Rochester, by act of the legislature, was authorized to acquire, by purchase or by appraisal under the right of eminent domain, title to .any lands it may require for the purpose of procuring water from Hemlock lake. It appears from the twentieth finding of fact that the defendant has secured the control of the outlet of Oanadice and Hemlock lakes to the place of their junction, and has erected permanent structures, etc. It thus appears that the defendant has the possession and control of these outlets, and is, therefore, a riparian owner. It thus has a right to use the water "passing through these outlets, but not, however, to the damage of the plaintiffs, who are lower riparian owners.

*623Again, it is argued that if the use by the defendant of the water of Hemlock lake is permitted to continue, such use may grow into a right by prescription. This right can be obtained only by continuing the use in the same manner for a period of twenty years. If, at any time, the use by the defendant of the water is increased so as to cause damage to the plaintiffs, the twenty years would only commence to run from the time of such increased use, and the plaintiffs would then have the right to maintain their action. (Kensit v. The Great Eastern Railway Company, 27 Chy. Div. Cases, 122-129.)

Judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs, on the opinion of Rumsey, J., at Special Term.