#### William Rider, Plaintiff, *v.*The City of Amsterdam, Defendant. Georgianna Brundige. Plaintiff, v. The City of Amsterdam, Defendant.

(Supreme Court, Fulton Special Term,

May, 1900.)

1. Water-course — Illegal diversion by city — Injunction.

While an award of small damages to a lower riparian proprietor, injured by a city’s unlawful diversion of a stream for the purpose of supplying its populalion with pure water, does not justify the refusal of an injunction to restrain the diversion, the court will not, in view *376of the relative resultant harm to the city and benefit to the riparian proprietor, immediately enjoin the city but will give it the option of avoiding an injunction by paying the past and fee damages of the riparian proprietor.

8. Amsterdam — Status of water commissioners.

The water commissioners of Amsterdam, although acting as a corporate entity, represent the city and it is liable for their acts.

Action for damages and for an injunction.

Jordan & Cassedy, for plaintiffs.

Hisbet & Hanson, for defendant.

Russell, J.

By the" construction and maintenance of a reservoir to withhold the waters of Hans creek, the defendant, through its water commissioners, has diverted a portion of the natural flow of that creek for its own uses in supplying wholesome water to the people of the city of Amsterdam. The lands of the two plaintiffs in these actions lie so far below the reservoir, and the uses to which those lands are put, neither of the plaintiffs seeking to maintain a water power for which there has been no available head, and com fining their uses of the water to farming purposes, that the damages by them sustained are trifling, and the sum of twenty-five dollars will cover the actual damages which the plaintiff Rider should receive on account of the diversion for the last six years, and the sum of fifty dollars is sufficient for the plaintiff Brundige. Small damages, however, will not justify the refusal of an injunction. Amsterdam Knitting Co. v. Dean, 162 N. Y. 278.

The diversion was an unauthorized one and an interference with the plaintiffs’ rights. It would be, however, of serious injury to a great many people to prevent the city from supplying water to the public through the reservoir on Hans creek. It is a matter of small importance to these plaintiffs whether that reservoir be maintained or not. The comparison of the relative harm, in case of an injunction, to the people of Amsterdam and the correlative benefit to the plaintiffs is a subject of consideration in the determination of the discretion to be used in granting or withholding an injunction. By putting upon the defendant, which guards the interests of the public within its limits, the election to determine whether it will not pay fee damage and thus be absolved from further at*377tack, the general, as well as the private, interests of the parties may be preserved. I think this is the proper way to do in such cases, and such a course seems to be sustained by the Appellate Division in this department. Gallagher v. Kingston Water Co., 25 App. Div. 82.

In determining the injury to the fee I have to take into consideration not only what the lands of the plaintiffs have been used for, but also what they might be used for for cultivation, and if enjoying the benefits from a larger stream of water through the creek with less likelihood of stagnation. I therefore put the fee damage in the Rider case at $100, and in the Brundige case at $200. Payment of these sums respectively, with the damages for the past, and costs of the actions, will give to the defendant the clear right to uninterrupted maintenance of its reservoir so far as these plaintiffs or the lands now owned by them are affected.

I cannot assent to the claim of defendant’s counsel that the water commissioners do not represent the city. They may act as a separate corporate entity, but the maintenance of the reservoir is within the jurisdictional powers of the city itself, and that reservoir, with the easements pertaining to it, would be the property of the city were the board of water commissioners wiped out of existence.

Kor do I think the title Brundige held by deed, and possession in herself and her predecessors in interest, overcome by the 1815 mortgage to the State, and the records in the office of the Secretary of State and the Commissioners of the Land Office.

Let judgment go for the damages awarded in these cases respectively, with costs, and also an injunction against the diversion of the water with the limitation that such injunction shall not 'be operative for sixty days after the entry of the service of the judgment on the defendant, and if within such sixty days the defendant pays, besides damages awarded for past diversions, the sums respectively determined for fee injury, then that said judgment shall be satisfied, the injunction cancelled and the right to one denied.

Ordered accordingly.