Reports of cases argued and determined in the Supreme Court of Judicature and in the Court for the Trial of Impeachments and Correction of Errors in the state of New-York Volume 17

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1859 Excerpt: ... land. The plaintiffs have Ik tliign more than a right, in common with the defendants, whose rights are the same, in this respect, as if derived from a stranger. It is true that the mill above was then only a fullingmill; but the defendants were not limited in the use of the water to a fulling-mill only. The community of use was for any kind of mills. And, unless the plaintiffs can show an express and exclusive grant or prescription, the stream is to be enjoyed in common, by all the occupants. If the defendants nave used their rights for their own benefit, in a reasonable manner, and for the ordinary purposes of their mill, they ought not to be answerable for any indirect or consequential damage. If we had a right to erect a mill, which cannot be denied, we had a right to use so much of the water as was sufficient to turn it. No doubt, an action lies for an improper or unlawful 319 use of the water. The case of Saunders v. Newman, (1 Barn. Aid. Rep. 258.) was for forcing back the water, and injuring the plaintiff's mill. The obstruction must be such as to prevent the water from flowing in its usual and accustomed course The principle of that case does not militate against the defendants. The doctrine is, that the water of a running stream cannot be so obstructed or stopped in its natural flow, as to injure another. Now, the evidence in this case shows, that there has been no waste of water by the defendants, nor any obstruction of its natural course. The plaintiffs can only have a dam of three and a half feet; and the defendants, by erecting an excellent dam, to raise a head of water, have done a thing most beneficial to the plaintiffs. If the defendants had no right to do this, their mills may be as well destroyed. If the facts are attentively examined, it...