(91 Hun, 82.)

#### COLONEY et al. v. FARROW.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

1. Trial—Withdbawing Case from Jury—When Error.

Where there is a well-defined and sharp conflict ot evidence as to the material facts in a case, it is error for the court to withdraw it from the-jury.

2. Riparian Rights—Raising op Dam.

Where the owner of a dam across a stream, by raising the same, causes-the water of the stream to overflow the lands of other owners, he is liable-for the damage caused.

Appeal from circuit court, Saratoga county.

Action by Agnes E. Coloney, and Eva L. Abel and Henry F. Abel, by their guardian ad litem, Jay C. Coloney, against Edwin Farrow. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiffs appeal.

Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HEBBICK, JJ.

T. F. Hamilton, for appellants.

Oscar Warner (J. W. Houghton, of counsel), for respondent.

MAYHAM, P. J.

This action was prosecuted by the plaintiffs to recover damages for an alleged flooding of plaintiffs’ land, and to have the raising of a dam on defendant’s premises, by which the alleged flooding was produced, adjudged and declared a nuisance. The complaint alleged that the plaintiffs were the owners of certain lands, situate in Saratoga county, through and along which flowed a stream of water, known as “Anthony’s Kill”; that below the premises of the plaintiffs the defendant owned and occupied land on either side of said stream, and erected or maintained a dam across-said stream, by and in consequence of which the water of the stream was obstructed in its natural flow, and set back upon the lands of the plaintiffs, and thereby flooded and drowned out 10 acres of plaintiffs’ land to such an extent that it became and was wholly valueless, and by-reason of which the plaintiffs sustained large damages. The answer admits plaintiffs’ title to their premises and the existence of the stream o„f water, that the defendant owned land located below that of the plaintiffs on said stream, and the existence and maintenance of a dam across said stream, but denies that in the year 1884, or at any other time, he raised the dam so as to flood or drown out the 10 acres of plaintiffs’ land, or any portion of the same, or that he unlawfully, or otherwise, flooded the plaintiffs’ land. • For a separate answer the defendant alleges that he purchased and became the owner in fee simple of the land and premises occupied by him, on both sides of Anthony’s Kill, December 30, 1881, and that,. 30 years prior thereto, the dam in question had been built across said stream, and had been maintained during all that time at the height at which it was at the time of the alleged injury to the plaintiffs, and alleges and avers that the said cause of action did not accrue within 20 years next before the commencement of the action. The issues came on to be tried at the Saratoga October circuit. *1651894, and at the opening of the case the defendant objected that the action was not one in which the plaintiffs had a right to trial by jury; that the same was solely and purely an equitable action. The court overruled the objection, and the case was tried before the court and a jury. The main contention on the trial was as to whether the defendant, in 1884, or at any time since that time, had raised the dam so as to flood the plaintiffs’ land or any portion of it. On this branch of the case the plaintiffs introduced the testimony of several witnesses, proving or tending to prove the raising of the dam by the defendant and the consequent setting back or damming of the water, so as to cause.the same to overflow the surface of the plaintiffs’ land, and to so percolate the soil of the same as to destroy its productive qualities, and render it untillable and of little or no value. In support of that theory, the plaintiff Agnes E. Coloney testified that 9 acres of plaintiffs’ land had once been productive and under cultivation, but after raising the dam the land was useless. Water was upon the land ankle deep, and crops were flooded. She also testified to conversations with the defendant informing him that raising the dam had flooded the plaintiffs’ land, and that defendant admitted the raising of the dam, and told her he was going to raise it still higher; that he wanted more power to run his knitting mill and the electric plant of Mechanicsville; that he wanted to buy the right to raise the dam; that the defendant also insisted that he had a right to raise the dam, and should go on and raise it; also, that the dam was raised by the defendant 15 inches, and that, in addition to this, defendant used two 12-inch flush boards. It was also proved that defendant said to one Coloney that he wanted to raise his dam 8 inches, and wanted to get the right of plaintiffs to do so; that he needed the power; that he could buy an engine, but that the water power was cheaper. There was also proved, by Coloney, that he heard defendant tell one Stiles that he had raised the dam, and that he had acquired the right of the Delaware & Hudson people to raise it. Thomas H. Laisdell testified that he had known the land for a number of years; had cultivated it, and purchased the 9 acres at one time; there was no water there when he last saw the land; since the alleged raising of the dam it was covered by water. Benjamin Freeman testified to his familiarity with the property before the alleged raising of the dam, and after; that the land, before flooding, was worth $200 rental value per annum, and after the flooding was worthless. George M. Moore testified that he had known the dam upon the premises for over 12 years; that the dam had been raised during that time; thinks over two feet; knows the dam was raised 15 inches on the 16th of June, 1893, by flush boards, and that he took them off against the defendant’s will, at the instance of the plaintiffs. Several other witnesses on the part of the plaintiffs testified, in substance, that the dam had been raised since the defendant’s occupancy of it, and to the damage occasioned to plaintiffs’ land by its being flooded. At the conclusion of the plaintiffs’ testimony, defendant moved, on various grounds, to dismiss the complaint, and the motion was denied by the court.

*166On the part of the defendant, Charles E. Hicks, a civil engineer, was sworn, who testified to taking the elevation of defendant’s dam, and the level from it to the land of the plaintiffs, and said that the lowest point of Coloney’s ground would be 77/ioo of a foot higher than the top of a flush board of 9J inches in height; that the level of the top of the flush board would run out at a point about 400 feet north of Farrow’s line in the creek. He also testified that, when he made the survey in April, the water did not run over plaintiffs’ land. Daniel A. Baker, another witness sworn in behalf of the defendant, testified that he remembers the dam from 45 to 50 years; that he repaired it in 1873, and built it at the height of the same timbers as were in the old dam, and did not build it any higher; that years ago it was a log dam; when he assisted in building it, he put sleepers in on plank, and some of the old dam was there yet, and that the new dam was about the same in height as the old one; that he had observed the dam from year to year from 1872; that there had always been flush boards used in dry times; that he put them on 2 feet high; that the average height was about 15 or 16 inches; that he knew the piece of Coloney’s land claimed to have been injured; that there was not any improvement or cultivation on this land 12 or 15 years ago. On the cross-examination, he said he lived in a house on the 13 acres; that he cultivated some of the 13 acres, and what he did not cultivate he pastured; that he had seen the creek come over the 13 acres in times of high water; that between 1870 and 1876 he had seen flush boards on the dam, nailed on with brackets. George W. Ostrander, another witness for the defendant, remembers the dam at least 40 years; was away from there from 1862 to 1863 or 1864, except when he was in the army; has known the dam ever since; thinks there was two-thirds of the old dam there yet; the creek years ago upon the Coloney land was about as now; saw the land a few days ago, and noticed more water on it than he was in the habit of seeing years ago; the flush boards were on defendant’s dam. John Baker, another witness sworn for defendant, remembers the dam since 1838; part of the dam that is there now was there when he was a boy; examined it recently, and did not observe anything of the present dam being higher or lower than the old dain. Several other witnesses, familiar with this dam for many years, were sworn on behalf of the defendant, and gave evidence similar to that to which we have been referred.

It will be observed, from reading this evidence, that there was, on the trial, a well-defined and sharp conflict of fact between the testimony on the part of the plaintiffs and that on the part of the defendant. There seems to have been abundant evidence on the part of the plaintiffs, standing alone, from which the jury would have been clearly authorized to find in favor of the plaintiffs, upon the two important questions: (1) As to the raising of the dam; (2) as to the injurious effect to plaintiffs’ land of the water set back by the dam. And that seemed to have been the view entertained by the learned judge at the conclusion of the plaintiffs’ testimony, when he refused the defendant’s motion to dismiss the complaint. It may *167also be added that, taking the evidence on the part of the defendant alone, the jury would have been clearly authorized to have found that there had been no interference with, or raising of the dam by, the defendant within the last 20 years, so as to cause the water to set back in the creek and overflow the plaintiffs’ land. Whether the plaintiffs’ theory, established by their evidence, or the defendant’s theory, established by his countervailing evidence, was correct, was clearly a disputed question of fact, which, ordinarily, under our system of jurisprudence, should be determined by a jury. It is true that, where there is such an overwhelming preponderance of evidence on the part of the defendant as to leave no reasonable doubt of the correctness of his theory, if there had been but a scintilla on the part of the plaintiffs in support of their theory, it would have been the duty of the court to take the case from the jury. Linkauf v. Lombard, 137 N. Y. 417, 33 N. E. 472; Hemmens v. Nelson, 138 N. Y. 517, 34 N. E. 342. But it can hardly be said, in this case, that the plaintiffs furnished but a scintilla of evidence in support of their theory, and the case therefore comes more nearly within the rule laid down by the court in Pratt v. Insurance Co., 130 N. Y. 206, 29 N. E. 117, where the court says:

> “If, in any view of the evidence, a verdict might have been rendered for the plaintiff, or if there were questions of fact which might have been determined for the plaintiff, and which, if determined in his favor, would have entitled him to recover, the case should not have been taken from the jury”; citing Sheridan v. Railroad Co., 36 N. Y. 39; Colt v. Railroad Co., 49 N. Y. 671; Train v. Insurance Co., 62 N. Y. 598.

Applying that rule to this case, it follows that if the jury had found, in accordance with plaintiffs’ testimony, that defendant had raised the dam, and that by so raising it the water was forced back upon it, or percolated the soil of the plaintiffs, so as to produce injury to their lands, then the plaintiffs would have been entitled to a judgment for such injury, and for the other relief demanded in the complaint.

It is insisted by the learned counsel for the respondent, in his brief, that the rule of the common law has some application to this case, as laid down in Rice, Ev. p. 1120, from which he quotes as follows:

> “It is a maxim of the common law that the owner of the soil has absolute dominion over the same, indefinitely, above and below the surface, and that whatever damages to others he may occasion by his rightful command over his own soil is damnum absque injuria.”

But it is difficult to see how that maxim can be applied to this case, so long as the word “rightful” constitutes a part of the maxim. For it cannot be contended, with any support of law or reason, that a man owning land through which a stream runs may obstruct the natural flow of that stream, or divert it, to the injury of riparian owners, either above or below such owner on the line of the stream; and the rule has been too long and too well settled to admit of a doubt that the riparian owner upon whose land water is set back by a dam constructed by a riparian owner further down upon the stream is without remedy. In Hammond v. Fuller, 1 Paige, 197, it -was held, where a party, by erecting a dam, raises the stream of water above *168its natural level, so as materially to injure mills above on the same stream, a court of chancery will decree that the dam be lowered, and the party erecting the same pay all damage occasioned by raising water above its natural level. And in this case there appeared to be great conflict of evidence, and the court declined to pass upon that conflict without the intervention of a jury, and the case was submitted to a jury. In Stiles v. Hooker, 7 Cow. 268, it was held that:

> “A grant is presumed from 20 years’ uninterrupted use of water at a certain height, and if for 20 years the defendants have raised their water but 5 feet, and afterwards raised it 6 feet by the same dam, and the additional foot injures the plaintiffs, they are entitled to damages.”

In Russell v. Scott, 9 Cow. 279, it was held that:

> “The erection of a milldam on one’s own land, and flowing a neighbor’s land for more than 20 years uninterruptedly, bars all right of action in the neighbor, but only for the dam as it stood. If it be raised, and the flow increased, the action lies.”

We are inclined to think that it was also a question of fact for the jury, under the evidence in this case, to determine whether or not there was a prescriptive right to flush boards on this dam. The evidence upon that subject does not show such a continuance and uninterrupted use of flush boards as would raise, by implication, a prescriptive right in law, unless it be found that that right was acquired by constant and uninterrupted use of flush boards. Whether it was or was not, it seems to us, is a question of fact for the jury.

It is insisted by the learned counsel for the appellants that the court erred in rejecting the testimony offered by witness Abel, who owned land on this stream next above the land of the defendant. The defendant had proved the use of flush boards under former owners, Hicks and Stevenson. The plaintiffs called Abel to prove that, when Hicks and Stevenson used flush boards, they paid for the right. That evidence, we think, was competent to be submitted to the jury, as bearing upon the uninterrupted prescriptive right of the defendant to use flush boards on his dam, and it was error for the learned judge to exclude it.

■ At the conclusion of the trial, the plaintiff asked to go to ihe jury upon the disputed question of fact as to the prescriptive light to use flush boards on the dam, and as to the question whether the defendant had raised the dam to the plaintiffs’ injury. This the court refused, and directed a verdict for the defendant. We think this was error, for which the judgment should be reversed.

Judgment reversed, and a new trial ordered, costs to abide the event. All concur.