#### Christian Schaefer, plaintiff, *vs.*Henry Herb and Henry Marbeck, defendants.

1. Where the existence of a continuous artificial canal upon the lands of both parties, through which water flows, lies at the foundation of an action, and an order has been made therein restraining the deféndant from interfering with the flow of water in such canal, so as to interrupt it on his own land and throw it .back on the plaintiff’s and direct it into his cellar; such order will be vacated, unless on an application to that effect, the existence of such canal is established.

2. Proof of the existence of a natural water-course will not, in such a case, sustain an allegation of that of an *artificial canal.*Such an action and order can only be sustained in case of such a water-course, and its interruption, by an allegation of its existence, in the pleadings and papers on which such order is sought to be sustained, and proof of such existence and threatened interruption.

3. And as the plaintiff could not, under an issue as to the existence of an artificial canal, at the trial, maintain his right to a perpetual injunction on the ground of a threatened interruption of a water-course, he cannot on that ground maintain his right to a temporary injunction.

4. The plaintiff may, in such a case, apply for leave to amend his complaint by alleging as his cause of action the existence of a water-course and a threatened interruption thereof by the. defendants; or discontinue his action and commence another, setting forth as the cause of action the existence of a water-course.

(Before Jones, J. at special term,

July —, 1867.)

This was a motion to dissolve an injunction order, temporarily restraining the defendants from interrupting the flow of water through an artificial continuous canal, running through the lands of both parties.

The cause of action as set forth in the complaint was, “ that more than ten years since the public authorities of the city of Hew York, for the purpose of carrying off surface water and water flowing from springs, constructed,- and from time to time extended, a canal partly under ground and partly exposed, from near 10th avenue, just north of 56th street, over and across lands belonging to *223the plaintiff and lands belonging to the defendants, to the North river,” that the plaintiff had “built a deep cellar on his premises, in which was stored a large quantity of (lager) beer; that the defendants were about to make an excavation on their land and threatened to cut off the said canal at ,the point where. it first touched their land, and to stop the flow of water through its lower portion; that if the water were so cut off it would back up and flood the plaintiff’s cellar, destroying the beer there and rendering it unfit for further use as a beer cellar. Upon this complaint, duly verified, the plaintiff' procured an injunction order temporarily restraining the defendants from cutting1 off, or interfering with, such canal, and interrupting the flow of water through it.

The defendants moved, on their answer and affidavits, to vacate such injunction'order.

*J. T. Hall,*for the plaintiff.

*M. Goepp,*for the defendants.

Jones, J.

It is evident that the foundation on which this action rests is the alleged existence of an artificial canal constructed and extended by the public authorities, and the supposed legal result therefrom that the plaintiff has a right to have such canal kept open and free for the flow of water. If either the alleged fact does not exist, or the supposed legal result does not follow from it, the foundation of the action being gone, the action itself must fall with it. Now the answer, among other things, denies that an artificial canal constructed and extended by the public authorities exists. From the affidavits and a personal view of the premises, I am satisfied that such artificial canal does not and never did exist. Consequently the plaintiff upon his present cause of action cannot succeed, *224and therefore is not entitled to retain his injunction. The plaintiff" not being entitled to retain his injunction for this reason, it is not necessary to consider the question whether if such canal did exist, the plaintiff would have a legal right to have it kept open. There has been considerable proof adduced on both sides, on the existence over the premises in question of a water-course, which the defendants threaten to interrupt and divert, but it is unnecessary on this motion to decide upon that. The plaintiff" has not based his action on the existence of any such supposed water-course. He cannot support his allegation of an artificial canal by proof of a water-course. To authorize him to introduce proof of the existence of a water-course which the defendants threaten to interrupt, he must found his action thereon, and allege the existence and threatened interruption. Since, then, under the issue as it now stands, the plaintiff could not at the trial maintain his right to a judgment perpetually enjoining the defendants on the ground of a threatened interruption of a water-course, he cannot on that ground now maintain his right to an order to. that effect, temporarily.

The plaintiff may test the accuracy of the views above expressed by appeal; or, conceding their correctness, apply for leave to amend his complaint by alleging as his cause of action, the existence of a water-course and a threatened interruption thereof by the defendants; or discontinue this action and commence another, setting forth as its cause of action the existence of such a water-course and interruption of its water. If he elects to so amend or commence such new action, and the defendants deny the existence of such water-course, the question will then legitimately arise whether a water-course does in fact exist, and if it does, then as to what the rights of the respective parties are in respect thereto.

The motion to dissolve the injunction must be granted, *225with $10 costs, hut the dissolution is not to take effect until the order dissolving the injunction shall be settled and entered. The defendants to draft the order and procure it to be settled by me on two days’ notice to the plaintiff, and, after settlement, to enter it.