Pierson v. Speyer

• Decision Date: 26 April 1904
• Citation: 178 N.Y. 270,70 N.E. 799
• Parties: PIERSON et al. v. SPEYER.
• Court: New York Court of Appeals Court of Appeals

178 N.Y. 270

70 N.E. 799

PIERSON et al.

v.SPEYER.

Court of Appeals of New York.

April 26, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Paul M. Pierson and others against James Speyer. From a judgment of the Appellate Division (81 N. Y. Supp. 636) affirming a judgment for plaintiffs, defendant appeals. Reversed.

RIPARIAN RIGHTS-WATER OF STREAM-REASONABLE USE-INJUNCTION.

1. A riparian owner may use the water flowing in a natural stream over his premises for domestic purposes, and to furnish power to run machinery and to irrigate his land, when the amount so used is not out of proportion to the size of the stream, and create ponds for fish and small fowl, so long as they are not large enough to materially diminish, by evaporation, the quantity of water usually flowing in the stream.

RIPARIAN RIGHTS-WATER OF STREAM-REASONABLE USE-INJUNCTION.

2. An upper riparian owner built a dam over the stream in order to use the water for both ornamental and domestic purposes, and lower riparian owner sought an injunction restraining him from in any manner interfering with the water of the stream so as to diminish its natural flow. The court found that by the act of the upper riparian owner a much larger surface of water was exposed to evaporation and absorption than otherwise would have been exposed, so as to deprive the lower riparian owners of the use of water to which they were entitled. Held not to authorize an injunction, in the absence of a finding that the use made by defendant was unreasonable under the circumstances.

Charles J. Fay and Darius E. Peck, for appellant.

Smith Lent, for respondents.

HAIGHT, J.

This action was brought to enjoin the defendant from intercepting the flow of water in a natural stream through his premises, or in any manner interfering with the same so as to diminish the natural flow of water therein through the plaintiffs' premises. The defendant was the upper riparian owner and the plaintiffs the lower owners of the stream in question. The plaintiffs had constructed a dam and reservoir by which they impounded the waters of the stream for the purpose of supplying water daily to the growing of roses, a business in which they were engaged. In the summer of 1899 the defendant constructed a dam across the stream upon his own premises, thereby creating a reservoir about 1 1/2 acres in extent, and impounded the water therein for both ornamental and domestic purposes. The trial court found as a fact that by reason of the construction of the dam and reservoir by the defendant ‘a much larger surface of water is exposed to sun and air than otherwise would be exposed, and the increased evaporation and absorption caused the water to cease flowing to and over the plaintiffs' land, and deprived them of the use of water to which they were entitled.’ There was no finding of fact that the defendant's use of the water was unreasonable. The decision was in what is commonly designated the ‘long form,’ containing specific findings of fact and conclusions of law. Upon these findings a judgment was entered, in which the defendant ‘is enjoined and restrained from continuing or permitting to continue the dam erected by him herein described in said complaint,’ etc.

We think the judgment entered in this case was not authorized by the findings of fact made by the trial court. It is not pretended that the defendant made any unreasonable use of the water flowing through the stream upon his premises, that he diverted or...