Slater v. Fox

Mebwiít, J.: That part of the charge excepted to, as above noted, did it stand alone, would very likely mislead the jury, as it substantially throws the burden on the defendants to prove that they did not do the damage. But the charge, taken as a whole is not, I think, open to this objection. Taking it altogether, I think the jury would clearly understand that the plaintiff was to recover what damages were shown to have been done by the structure erected by the defendant. By the other exceptions in the case, the question is presented, [546] whether or not the defendants, who are interested in the use of the Tioga river as a public highway-, have the right, as against an opposite owner, to restore the original bank at a place where such restoration was necessary for the proper navigation of the river, the same being done with the assent of the owner of the land where done. In other words, can the plaintiff complain, if nothing more has been done than to restore the bank to its original position % The public have a right of way in every stream which is capable, in its natural state and in its ordinary volume of water, of transporting, in a condition lit for market, the products of the forests or' mines, or of the tillage of the soil, upon its banks (Morgan v. King, 35 N. Y., 454; Browne v. Scofield, 8 Barb., 239); and it is said that the public claim to such use should be liberally supported. A riparian proprietor has the right, by erecting barriers, to confine the waters within their original channel, and he is not responsible for any damage to his neighbor, unless the barriers prevent the water from running in its accustomed channel, and with its usual force. He may not make a different bank, but can repair or rebuild a broken one. (Pierce v. Kinney, 59 Barb., 56, affirmed in Court of Appeals; Angelí on Water-courses, §§ 333, 334; Washburn on Easements, chap. 3, § 3, par. 47.) This being so, can the defendants, for their own benefit, with the assent of the riparian owner, do what such owner could legally have done ? The plaintiff could not complain, if the owner had done the act in question. Has the plaintiff any better rights against the defendants, who are also interested parties and entitled to enjoy a privilege that should be liberally supported ? The extent of the right of plaintiff was to have the river run in its accustomed channel; and, in order to recover, he must show an infringement-of this right. The question is not whether the defendants have trespassed upon somebody else, or trespassed generally, but whether they have trespassed upon plaintiff. In this view, I do not see how to avoid the conclusion that the court below erred in refusing to hold that if the defendants did no more than to restore the original bank, they were not liable. They were legally upon the river, and entitled to it use. They had the right, in case of necessity, to make use of the bank for certain purposes. (Washburn on Easements, chap. 3, § 9, par. 16.) In case of a break or diversion of the stream [547] by the action of the elements, to their injury, they had the right to repair, interfering with no right as it stood before the break or diversion. This, it seems to me, is fair and just, and the correct basis for both parties to stand upon. I think, therefore, the question should have been submitted to the jury, whether or not the defendants did any more than to restore the bank to its original position. A new trial should be granted, costs to abide event. Present — Smith, P. J., Gilbert and Meewbt, JJ. Gilbekt, J., dissented. New trial granted, costs to abide event.