Mckee v. Delaware & H. Canal Co.

• Citation: 125 N.Y. 353,26 N.E. 305
• Parties: McKEE v. DELAWARE & H. CANAL CO.
• Decision Date: 13 January 1891
• Court: New York Court of Appeals

125 N.Y. 353

26 N.E. 305

McKEE

v.DELAWARE & H. CANAL CO.

Court of Appeals of New York.

Jan. 13, 1891.

Appeal from supreme court, general term, third department.

Thornton A. Niven, for appellant.

T. F. Bush, for respondent.

O'BRIEN, J.

This was an action of an equitable character to restrain the defendant from discharging water upon the plaintiff's land through the means of a dam or reservoir constructed to store water for the use of its canal. The case was tried by the court, with the aid of a jury. The plaintiff recovered damages, and the equitable relief claimed was granted, and the general term has sustained the decision. The judgment rests on the following facts found by the trial court: In the year 1851, the plaintiff became the owner, and went into the possession, of the farm for the alleged injury to which the damages were recovered. It embraced some 30 or 40 acres of low, flat land, through which flowed a stream or small brook about six inches deep, and from three to six feet wide. The land on both sides of the stream was marshy, and the plaintiff straightened the course of the stream, and made it considerably wider and deeper, and then, by a system of drainage through the flat land and into the stream thus enlarged, the land was reclaimed, and became valuable for agricultural purposes. After the land became so improved, the defendant, in the year 1871, constructed its dam and reservoir across the stream on its own land, at a point above the lands of the plaintiff. This dam was used for the purpose of retaining and holding back the water in dry seasons, from which it was discharged through the stream on plaintiff's land into the Neversink river, and from thence into defendant's canal below. The defendant in fact used the brook that ran through the plaintiff's farm as a feeder, through which water was discharged from the dam above into the canal. At certain seasons of the year, during the period of canal navigation, the defendant discharged the water in much larger quantities than would otherwise naturally flow in the stream, and to such an extent that its banks were overflowed, and the ditches, constructed by plaintiff to drain his land, filled and rendered useless, and the flat land submerged and rendered untillable, and the crops thereon destroyed. To prevent these injuries to plaintiff's land a perpetual injunction was granted against the use of the stream as a feeder for the canal to discharge water through it in quantities greater than would naturally flow therein. It was not claimed that the injuries were caused by any want of skill or negligence on defendant's part in the construction of the dam or reservoir, but by the fact that more water was discharged by defendant into the stream...