Brown v. Ontario Talc Co.

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. [275] 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.