(79 Hun, 151.)

#### CHACE v. WARSAW WATERWORKS CO.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

1. Diversion op Stream—Injunction.

A riparian owner may enjoin the diversion of the stream.

■3. Same—Estoppel.

Where plaintiff, a riparian owner, who receives his supply of water for domestic purposes from defendant water company, continues to use the water after the stream running through his land has been diverted by defendant for the purpose of increasing its water supply, plaintiff is not estopped to maintain the action for the diversion.

Appeal from judgment on report of referee.

Action by Martin D. Chace against the Warsaw Waterworks Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

E. M. Bartlett, for appellant.

Charles D. Newton, for respondent.

BRADLEY, J.

The action was commenced in March, 1890, to restrain the defendant from diversion of the waters of Gibson *730creek from its natural channel. The plaintiff had for upwards of 20 years been the owner of a grist mill and premises adjacent to Oatka creek, in the town of Warsaw, county of Wyoming, of which latter creek the Gibson creek is a tributary, intersecting it about one mile above the plaintiff’s mill. In 1889 the defendant constructed a dam, 10 feet high and about 60 feet in length, across the Gibson creek, about 2 miles above its intersection with Oatka creek, for the purpose of there holding the water, and making a reservoir to supply water to the village of Warsaw, and for such purposes as the defendant should desire to appropriate it. The plaintiff, deeming this an invasion to the prejudice of his rights to have the water of Gibson creek flow into and along Oatka creek, as contribution to the power for the operation of his mill, seeks by this action to enjoin the defendant from thus diverting the waters of the creek. The plaintiff’s mill has three run of stone used for grinding flour and feed, and is operated by the power of water taken by means of a race from Oatka creek. Both of those creeks have well-defined natural channels, wherein the water has flowed from time immemorial; and, on well-settled principles, the right of riparian owners is to have the waters of natural surface streams flow in their channels, subject only to such reasonable use by those above as does not operate as a diversion of the waters to the prejudice of the usufruct of those below; and, as a rule, the latter may be entitled to injunctive relief when requisite to protection against such diversion. Corning v. Factory, 39 Barb. 311, 40 N. Y. 191; Garwood v. Railroad Co., 17 Hun, 356, 83 N. Y. 400; Smith v. City of Rochester, 38 Hun, 612, 104 N. Y. 674. The plaintiff was during the period before mentioned, and is, a riparian owner, where he makes use of the water to operate his mill; and the defendant is a riparian proprietor on Gibson creek, where its dam and reservoir are located. But the latter, by mevans of a pipe leading from it, diverts water from that creek; and the plaintiff alleges that such diversion is essentially injurious to him. This is a controverted question of fact. While the evidence on the part of the plaintiff is to the effect that the water power for' his mill is essentially impaired by the defendant’s dam, and the taking of water from the reservoir produced by it, and that, as the consequence, the value of his mill property is depreciated, the evidence on the part of the defendant tends to prove that there is no appreciable diminution of water in Oatka creek occasioned by the dam and diversion, and that the plaintiff’s mill property is not thereby rendered of any less value than it otherwise would have. The referee found the fact against the defendant, and his finding in that respect is fairly supported by evidence. Since the land adjacent to the head waters of those creeks has been cleared up, and for about 12 years before the commencement of the action, there has not been a constant supply of water in them to operate the plaintiff’s mill during the dry season from June to September, inclusive. The scarcity of water has been such that the mill could be run only a small portion of the time during that period. At *731times of heavy rains, during such time, the water flows in great abundance, and soon thereafter the streams become nearly dry. Although the mill may not be very valuable for practical purposes, the plaintiff’s right to the full benefit of his water privilege cannot for that reason be lawfully invaded or impaired by diversion of the water which would otherwise reach his premises, and contribute to the motive power of his mill. The diversion is made through a 12-inch pipe at the dam, extending 1,800 feet; then 10-inch pipe, 1,000 feet; then 8-inch pipe, 600 feet; and then 3-¡--incli pipe, to the lower reservoir. From the 12-inch pipe there is a take off, by a 6-inch pipe, to certain salt company’s works. The discharging capacity of these pipes as they are located is estimated at upwards of 600,000 gallons, or upwards of 89,000 cubic feet, in 24 hours. This is the quantity of water which, by the means applied, may be diverted by the defendant from the creek in the season of the year when the use of all the water available to the purpose may be desirable for the plaintiff to propel his wheel; and, in view of the facts found by the referee and supported by the evidence, it cannot here be otherwise assumed.

It is urged that the plaintiff is estopped from maintaining this action by participation in the diversion of the water of the creek in the manner it is done. The defendant was incorporated in 1869, and then constructed its waterworks, taking water from sources other than Gibson creek. In that year, by means of two pipes, of size half inch, connected with defendant’s main, water was, and since has been, taken to the plaintiff’s dwelling houses, in the village of Warsaw, for domestic purposes. This, it is contended, has been and is such a participation in the diversion complained of as to deny to the plaintiff the right to assert that as against him it is unlawful or prejudicial. The cause so sought for the charge of such acquiescence on his part as to estop him from seeking relief seems quite too remote for such purpose. When the plaintiff became the patron of the defendant, in 1869, by taking water at his houses by the means so provided, none of the supply was taken from Gibson creek; and the fact that he did not refuse to take any water from his connecting pipes, after water taken by the defendant from that creek was mingled with water from other sources, has no necessary significance by way of acquiescence in the diversion of the water in question. Galway v. Railway Co., 128 N. Y. 132, 28 N. E. 479. He did nothing in aid of the act of diversion, or in applying the means to consummate it; nor is there any evidence of consent on his part. The cases cited by the learned counsel for the defendant do not support his proposition of participation or acquiescence in the diversion by the plaintiff.

It is contended that the case is not one for injunctive relief, because the damages sustained by the plaintiff are trivial, and that he should be left to his remedy at law. A well-recognized reason for granting injunctions is in the fact that it will save the necessity of multiplicity of suits which might and very likely would be the consequence of the denial of equitable relief; and to so *732qualify the injunction as to permit the diversion of the water from the creek to be continued by the defendant in such manner and to such extent as not to injure the plaintiff in the operation of his mill would still leave open for controversy the question whether to any and to what extent he may, from time to time, in the future, suffer damages by the diversion of water from the creek. This would very likely, and perhaps necessarily, .be the consequence of such modified relief, since there apparently cannot, from the nature of the case, be declared any defined extent or measure of water which or any designated time or times when it can be diverted by the defendant’s works from the creek without prejudice to the plaintiff’s right to the use of the water flowing in the stream. It is therefore impracticable to adjudge any qualified permission of the defendant to do so. Nor can it well be held, in view of the facts found by the referee, and which' the evidence permitted him to find, that the diversion of the water from Gibson creek, by the means provided for that purpose by the defendant, has not been, and may not substantially be, prejudicial to such right of the plaintiff as a riparian owner. The judgment should therefore be affirmed; but to enable the defendant without prejudice, if so advised, to take proceedings to acquire the right to thus take the water from the creek, the operation of the injunctive provision of the judgment appealed from is suspended six months from the time of the entry and notice of the judgment upon the decision of affirmance herein. All concur. ■