#### STANDEN v. NEW ROCHELLE WATER CO.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

1. Waters and Water Courses—Appropriation by Riparian Owner.

The storage and sale of water from a running stream is a wrongful diversion of such water from its natural course, for which a lower riparian owner may have redress.

*932. Same—Extent oe Right.

Tlie relative amount of watershed owned by adjoining riparian owners will not affect their individual rights to a proper use of the stream.

Appeal from special term, Westchester county.

Action by Elizabeth G. Standen against the New Rochelle Water Company to enjoin defendants from obstructing the natural flow of a nonnavigable river, and diverting it from the channel thereof, except for the usual use on defendant’s premises. The complaint was dismissed, and plaintiff appeals.

Reversed.

Argued before BROWN, P. J., and PRATT, J.

Grove M. Harwood, for appellant.

Martin J. Keogh, for respondent.

PRATT, J.

This is an appeal from a judgment at a special term of this court entered in the office of the clerk of Westchester county on March 5, 1895. The action was commenced on August 22, 1894, and was brought for the purpose of enjoining and restraining the defendant from obstructing the natural flow of a nonnavigable stream of fresh water, known as “Hutchinson Greek,” which runs in a southerly direction through portions of New Rochelle, Pelham, and Eastchester, and from diverting the water from the channel of the stream, excep¿ for such uses on defendant’s premises as are usual and proper for upper riparian owners. The plaintiff also asks judgment for such damages as she can prove were sustained by reason of such alleged obstruction and diversion. The plaintiff and defendant are riparian owners on said river, the defendant being the upper riparian owner. The defendant owns over 14,000 feet on both sides of the stream, while the plaintiff owns 1,000 feet. The plaintiff claims that, in consequence of the erection of these dams, she has been deprived of the use and enjoyment of the natural flow of water in the stream; and she seeks by this action to enjoin the defendant from further interfering with such use and enjoyment, and to recover damages for the loss occasioned thereby. Judgment was rendered for the defendant, dismissing the complaint upon the merits, with costs.

It seems to me plain, from the evidence in this action, that the judgment should have been the other way. The defendant is a waterworks company, organized under the laws of this state for the formation of waterworks companies, for the purpose of supplying water to the village of New Rochelle; and the purpose of these dams was to make the reservoir to hold water for sale to the customers of the defendant. 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 disseised but by lawful judgment of his peers, or by due process of law. Gardner v. Trustees, 2 Johns. Ch. 162; Scriver *94v. Smith, 100 N. Y. 471-480, 3 N. E. 675; City of Syracuse v. Stacey, 86 Hun, 441, 33 N. Y. Supp. 929; Washb. Easem. 276; Ang. Water Courses, § 596. “Though the legislature has power to take private property for useful and necessary purposes, it is bound to provide a fair compensation to the individual whose property is taken; and, until such indemnity is afforded to the party, that power cannot be exercised legally.” Gardner v. Trustees, supra. It is not competent for the defendant or the court to determine what amount of water was needed by the plaintiff, for she was entitled to the whole of it, except what was used by the defendant for ordinary purposes. Undoubtedly, the defendant had the right to build dams upon his own lands, and to store water, but that does not carry the right to divert the water from its natural course. It appears from the evidence that 212,000,000 gallons were annually diverted and sold by the defendant. This evidence is not disputed in the case. That was quite a large proportion of all the water that ran in said stream. It is true that at some seasons of the year the water flowed over the dams so as to supply all that was needful to the plaintiff below; but the storage of the water, and its sale at other seasons of the year, made the stream nearly or quite dry on the defendant’s land. The case of Rubber Co. v. Rothery, 132 N. Y. 293-296, 30 N. E. 841, it seems to me, is decisive of this case. In that case the court went so far as to hold that the title of the riparian proprietor to his water rights in a stream, and his right to redress for their invasion, is not conditional upon the beneficial user of them. “Where there is a diversion of the waters of a stream, which materially diminishes its natural flow over the land of the proprietor below, he may maintain an action, and is entitled to recover nominal damages, although he has as yet made no use of the water, or water enough is left in the stream for the purposes of his business as then conducted.” It was not competent for the court to determine what water was necessary for the plaintiff for the purposes of her business as it had been conducted. “But the plaintiff’s title to his water rights, and his right to redress for their invasion, were not conditional upon the beneficial user of them.” Corning v. Factory, 40 N. Y. 191.

We also think the amount of watershed of the two parties to this suit was not material evidence upon the issues in this case, and that its admission was error. The plaintiff was not limited in her use of the water by the fact that the defendant owned more watershed than she did. She was entitled to the beneficial use of all the water that flowed in the stream, except such as was reasonably used by the defendant. The rights of the parties did not at all depend upon the amount of watershed owned by them. The lower riparian owner had a right to all the water that ran in the stream, except such as the defendant had a right to reasonably use for its own purposes.

There are numerous exceptions in this case; but the law seems to be well settled. The plaintiff is not limited in her use of the water as she has been accustomed to use it, but she has a right to bring an action for the impairment of such prospective use as she might reasonably make of the water. It is perfectly plain that here was a material diversion of a stream of water wich would naturally run *95through the plaintiff’s premises. The plaintiff, having established the right and shown that it was invaded, was at least entitled to nominal damages, which would have carried costs. Judgment reversed and new trial ordered, costs to abide the event.