Sidney Brown, Appellant, v. Ontario Talc Company, Respondent

Sidney Brown, Appellant, v. Ontario Talc Company, Respondent. Dam — maintenance of, by a private corporation — right of an upper riparian owner to enjoin the setting back of the water on his land — the court cannot require his acceptance of a gross sum for the future overflow of his land or remit him to his remedy at law. A private corporation which constructs a dam across the Oswegatchie river, which dam, in times of high water, causes the water of the river to back up and overflow the premises of an upper riparian proprietor, is guilty of a trespass and will, at the suit of the upper riparian proprietor, be required to lower the dam to such an extent as to terminate the trespass. It seems, that in such an action, the corporation being, a private one, the court has no power to render a judgment providing that, if the plaintiff should refuse to execute an instrument authorizing the corporation to maintain the dam at its present height upon receipt of a specified sum, the injunction should be denied and the plaintiff be remitted to an action at law for relief. Appeal by the plaintiff, Sidney Brown, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of St. Lawrence on the 26th day of March, 1902, upon the decision of the court rendered after a trial at the St. Lawrence Special Term, as refuses, except upon certain conditions, to grant an injunction against the maintenance of a dam beyond a certain height. Plaintiff is the owner of a. hotel situate upon the banks of the Oswegatchie river. Below his premises are the premises of the defendant, opposite which the defendant has constructed a dam fourteen feet in height, which, in times of high water, sets back the water of the river upon the premises of the plaintiff to the plaintiff’s damage. This action was brought by the plaintiff to recover for the damages sustained by reason of an injury from the water thus set back, and for a mandatory injunction against the defendant compelling it to take off four feet from the top of said dam. The trial court ordered judgment for the plaintiff for the sum of $125 damages, with costs, and further ordered that the defendant might pay to the plaintiff within sixty days after notice of entry of judgment, in addition to said damages and costs, the further sum of $300 for the use of its dam, as now maintained, in the future, upon the plaintiff’s giving a release for such further use. It was further provided that if the plaintiff, upon tender being made of said sum of $300, declined to give such release, he was remitted to his remedy in future actions for the damages occasioned him by the maintenance of the dam, if- any such damage shall appear, and an injunction against the maintenance of the dam at its present height was denied. It was further provided that if the defendant declines to pay the said sum of $300, in addition to the sum of $125 and costs of. this action, an injunction was directed against the maintenance of the dam beyond the height of ten feet from the. foot of the tailrace. Pursuant to this judgment, the defendant offered to the plaintiff the sum of $300, and demanded a release for the future use of the dam at its present height. This was declined by the plaintiff, who has appealed from the judgment in so far as it denies to him a permanent injunction. Earl Bancroft, for the appellant. Vasco P. Abbott, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: This dam is constructed with a chute in the middle about twenty-two feet wide, the bottom of the chute being only eight feet in height. Ordinarily the waters of the river pass through this chute and do not rise to the level of the top of the dam. In times of high water, however, this chute proves insufficient to take all of the water of the river, and the water overflows the top, at which times damage is caused by the backing up of the water upon the plaintiff’s premises. This construction, infringing upon the plaintiff’s rights, was an unwarranted trespass. The defendant is not a public corporation which can acquire the right to maintain this dam at its present height by the payment of compensation after a condemnation under sections "3357 to 3384, inclusive, of the Code of Civil Procedure. (See Pappenheim v. M. E. R. Co., 128 N. Y. 436.) It may be that the damage to the plaintiff’s property is only occasional, but it is a damage against which the law should protect the plaintiff. By the maintenance of this dam at its present height an adverse user may be instituted, and thus in time a right be acquired originating in a clear trespass. (Duesler v. City of Johnstown, 24 App. Div. 608; New York Rubber Co. v. Rothery, 132 N. Y. 293.) Whatever hardship may result to the defendant in removing a dam expensively constructed comes from its own folly in a construction made in defiance of the rights of the plaintiff. The respondent insists that this appeal must be dismissed because there are no specific findings of fact and law. He quotes section 1022 of the Code of Civil Procedure in the form in which it existed before the amendment of 1894 (Laws of 1876, chap. 448, as amd. by Laws of 1877, chap. 416, § 1, subd. 233), and the authorities which he cites are applicable entirely to the Code before the amendment. Under the amendments of 1894 and 1895 (Laws of 1894, chap. 688, and Laws of 1895, chap. 946), the decision need no longer state separately the findings of fact and of law, and upon a general exception to a short decision filed the court has full power to review upon appeal. In our judgment, therefore, the plaintiff’s appeal is well taken, and the judgment, so far as an injunction is refused, should be reversed and a new trial of such issue granted, with costs to appellant to abide event. All concurred. Judgment, so far as appealed from, reversed on law and facts, and new trial granted, with costs to appellant to abide event.