#### EDWARD H. SEAMAN, Respondent, *v.*LUTHER B. LEE and GEORGE W. LEE, Appellants.

*Stream*— *right of mm' try riparian owner*— *pollution of*— *remedy of party*

Plaintiff built three ponds, for hatching and rearing trout, in a- stream running-through his land, which entered the same from the land of Hicks. Defendants dug a ditch from the rear of certain dwellings, erected by them, through Hick’s land to the stream, and discharged drainage and waste water therein, whereby plaintiff’s trout were killed. *Meld,*that he was entitled to an injunction restraining the defendants from further corrupting and polluting the said stream.

Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.

Tbe action was brought by tbe plaintiff to restrain tbe defendants from using a ditch, that they bad dug to carry off waste water from then’ bouses into a brook that fed tbe trout ponds of tbe plaintiff, and from fouling and corrupting tbe said stream; and also to recover damages for tbe loss of trout, occurring by the above acts.

*Scmwel D.*Morris, for tbe appellants.

*Wm. H.*Onderdonk, for tbe respondent.

*608DyeMAN, J. :

Tbe facts established by tbe testimony and found by tbe referee in this action are, that tbe plaintiff is tbe owner of a farm of land in Queens county; that a stream of water comes on to it from tbe land of William S. Hicks, on tbe north, and flows through it; that tbe plaintiff has constructed three ponds on bis land on tbe line of tbe stream for tbe purpose of breeding, propagating and growing trout, and has stocked each of these ponds with trout; that tbe defendants are tbe owners of land adjoining tbe land of Hicks, near to this stream, and have dug a ditch from tbe rear of their dwelling-house to this stream; that the'* drainage and waste waters, containing refuse matter, were carried through this ditch in tbe summer of 1874, into this stream, and by this stream into tbe plaintiff’s ponds, and corrupted tbe waters thereof and caused tbe death of *720*trout in these ponds, which belonged to tbe plaintiff, and which were worth fifty-six dollars; that tbe defendants at tbe time of'the commencement of tbe action were using the ditch or drain for conveying off waste water, which contained unwholesome and injurious substances, and thus polluted and corrupted the waters of this stream and rendered the same impure and unwholesome.

The law applicable to this state of facts is not open to uncertainty.

The plaintiff has no property in the waters of this stream as it passed along through his land, but be had a right to its use; he had a right to have it come into his land pure and in its natural course and way.

As water, like air, is an element in which no person can have an absolute property, yet, it is also, like air, free for the use of all, and the law has been diligent and rigorous to maintain it in its natural purity; and any person who does any act to it is liable to an action for damages, and may be restrained from doing so by injunction.

The referee has found, upon sufficient evidence, that the defendants have fouled this stream of water and that the plaintiff has sustained damages thereby.

The judgment must be affirmed, with costs.

Present — BaeNArd, P. J., Gilbeet and DtemaN, JJ.

Judgment affirmed, with costs.