Gray v. Village of Fort Plain

Chester, J.: . The defendant had never condemned the right to divert the waters of this stream from its natural channel. The plaintiff, as a riparian owner of lands on the stream below the point of diversion, was entitled to the full flow of all the water of the stream, even if he had never yet needed or used it. This was none the less a property right of his simply because he had never utilized it. (New York Rubber Co. v. Rothery, 132 N. Y. 293 ; Gallagher v. Kingston Water Co., 25 App. Div. 82.) And it was a right of which he cannot be deprived without his consent, except by condemnation. [218] and by being compensated therefor. It is said in Standen v. New Rochelle Water Co. (91 Hun, 272): “ The general rule of law is that the owner of land, through which a stream of water runs, has a legal right to the usual and natural flow of the water across his premises, of which he cannot be deprived without his consent or just compensation, subject, of course, to the right of the upper riparian owner to use water for his own domestic purposes. The right to a stream of water is as sacred as the right to the soil over which it flows. It is a part of the freehold, of which no man can be disseized but by the lawful judgment of his peers or by due process of law.” These and numerous other cases which might be cited effectually dispose of the claim of the appellant that because, after the diversion of the water by the defendant, the plaintiff had in said stream all the water he needed for watering his stock, horses and cattle and for all domestic purposes, he was not damaged by such diversion and, therefore, ought not to succeed in this action. The learned referee has practically adopted this view so far as past diversion is concerned, for he has only awarded nominal damages for that, but as the defendant intends to permanently divert the waters of the stream the learned referee was clearly right in awarding substantial fee damages for the permanent injury, based upon his view and upon the evidence, and in awarding an injunction in case such damages were not paid. The referee, under the stipulation of the parties upon the trial, was in effect made a commissioner as in condemnation proceedings. The measure of permanent damages is .the difference in value of plaintiff’s premises on the day of the trial, deprived of the water which the defendant diverts, and their value if without such diversion. (Gallagher v. Kingston Water Co., supra.) This was the rule followed by the referee in fixing the permanent damages, and we think there iá sufficient evidence to support his finding as to the amount of such damages. We have examined the numerous exceptions taken to the ruling of the referee, but we think none of them present reversible error. The judgment should be affirmed, with costs. Judgment unanimously affirmed, with costs.