John W. Robinson et al., Appellants, v. George W. Davis, Respondent

John W. Robinson et al., Appellants, v. George W. Davis, Respondent. Robinson v. Davis, 47 App. Div. 405, affirmed. (Argued November 1, 1901; decided December 10, 1901.) Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 5, 1900, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. Thomas Young and Joseph M. Belford for appellants. Timothy M. Q-riffi/ng for respondent. [MAJORITY — Haight, J.] Haight, J. This action was brought to restrain the defendant from appropriating to his own use the waters of Swan pond. The plaintiffs and the defendant are the owners of the pond, which consists of about sixty-five acres, and of all the lands which surround it, the defendant being the owner of the greater portion, together with the lands through which the outlet flows at the southwest corner. Upon these lands he maintains a cranberry bog of about twenty-five acres in extent. For the purpose of supplying the bog with water he has constructed a dam, flume and numerous ditches, taking the water from the pond from time to time for that purpose. It was to restrain this use of the water that this action was brought. The trial court has found as a fact that while the main outlet of the pond is at the northeast corner there is another natural outlet at the southwest corner through the defendant’s lands, and that he has used no more water to flood his cranberry bog than the natural outflow of the pond by that outlet. The judgment of the trial court dismissing the complaint upon the merits has been affirmed unanimously, thereby establishing the facts as found beyond our power of review. If the defendant used no more water than- the natural outflow of the waters of the pond through his premises, the plaintiffs have no cause for complaint, and the question sought to be raised by them as to their right to compensation, etc., as owners of a part of the waters of the pond, is not presented by the record and need not now be determined. The judgment should be affirmed, with costs. Parker, Ch. J., Gray, O’Brien, Landon, Cullen and Werner, JJ., concur. Judgment affirmed. .