New York Rubber Co. v. Rothery

• Decision Date: 29 November 1887
• Citation: 107 N.Y. 310,14 N.E. 269
• Parties: NEW YORK RUBBER CO. v. ROTHERY and others.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 310

14 N.E. 269

NEW YORK RUBBER CO.

v.ROTHERY and others.¹

Court of Appeals of New York.

November 29, 1887.

Appeal from general term, supreme court, Second department.

The New York Rubber Company, plaintiff, sued John Rothery et al. for $1,000, for diverting the water of a stream passing the property of the plaintiff. Judgment was rendered in favor of defendants by the trial court, and affirmed by the general term of the supreme court. Plaintiff appealed.

H. B. Turner, B. F. Lee, and W. H. L. Lee, for appellant.

H. H. Hustis, for respondents.

PECKHAM, J.

The defendants claim two answers were made to the plaintiff's case, each of which was fatal to a recovery herein.

One answer was that the use made by the defendants of the water in the stream was not unreasonable or illegal, or in any way inconsistent with the rights of the plaintiff. The defendants say that plaintiff's lots are on the opposite side of the stream from their land, and that no machinery can be placed on the lots, to be propelled by water, as plaintiff has no land upon which to erect a dam, and there is no fall in the stream between the bridge and defendants' tail-race, so that the only use the plaintiff could have for the water in the stream is for domestic purposes; and there being, as they claim, always water in the stream by the plaintiff's lots for such purposes, its rights as a riparian owner have not been injured. The difficulty with this statement is that there is evidence in the case which tends to contradict it, and which tends to show that the use made by the defendants of the water in the creek was such that, at various times, the quantity which would otherwise have flowed past plaintiff's lots was perceptibly and materially diminished in quantity, and to such an extent that at certain times, when the water was running through the tail-race of defendants, there was none running over or through the dam except leakage, and of course none flowing past the plaintiff's lot, the whole substantial part of the water of the stream going through defendants' tail-race, instead of down its original and natural channel. There is evidence tending to show that the water was not returned to the stream in time to reach that part of the plaintiff's lot which it would otherwise naturally touch.

We do not assume to say that this evidence is true, but it raised an issue which the plaintiff was entitled to have decided by the jury, unless there was some other defense to the action. There cannot be much dispute now as to the general rights of riparian owners, or that, if the defendants did use the water to such an extent as some of the evidence tends to prove, they used it in a manner that they had no legal right to do. Whether they did or not we do not know.

The other answer which the defendants make is that of an equitable estoppel. It may be assumed that at the time when the defendants built their mill-race, and erected expensive buildings for manufacturing purposes, Ruth J. Smith was the owner of the lots in question, and which are now owned by the plaintiff. The estoppel is based upon the following facts: The defendants built the tail-race upon their own lands, and erected their factory also upon their own lands, which factory was to be supplied with water from the stream carried through this mill-race. While Ruth J. Smith was thus the owner of the lots, and while the defendants were building this mill-race on their own lands, she saw defendants and their men at work on it, and on the factory, and she understood the race was being built to take water from the stream to the shop, and during all the time it was in course of construction she never objected to it in any way, or authorized any one to object to it for her, nor did she at the time object to the defendants carrying the water down the race. These are all the facts upon which an estoppel is claimed, and upon which the learned courts below decided that an estoppel existed. They are not sufficient to authorize the presumption of a grant, or even a license, (Haight v. Price, 21 N. Y. 241,) and defendants must rest their defense upon an estoppel pure and simple.

It will be seen there is no element of fraud in the case, nor any evidence that Mrs. Smith led the defendants into making this outlay on any assumption that they had the right to do it when in truth they had not, and she knew it, and yet induced them to go on and expend their moneys upon such erroneous assumption. Nothing of the sort is pretended. The simple case is presented of an owner of...