Third Department, February, 1921. [Vol. 195. cause for complaint to other riparian owners. In 1894 and 1895 the defendant repaired its whole dam and reconstructed that portion covered by its purchase of the lands on the westerly side and whatever other rights it acquired by that purchase. The court has found upon evidence sufficient to sustain the finding that the gap of twenty or thirty feet at the extreme west end was closed by a substantial structure and that said dam west of the thread of the river was raised eighteen inches above its former height, eighteen or nineteen years after the plaintiff brought this action. In and by her complaint she alleges that the land was used and occupied by her for agricultural purposes; that erected thereon were a dwelling house and necessary farm buildings; that the dam, as above described, was wrongfully maintained without the consent of herself or her predecessors in title; that as so maintained the dam set back the waters of the river upon about thirty-five acres of her farm and rendered it damp, wet, soggy, marshy and "totally unfit for cultivation;" that dirt and debris were spread over the land; that pools of stagnant water were caused to stand upon the land and around the buildings; that an unsanitary condition was thereby created; that fences were injured, and ditches upon the land were filled and the banks of such ditches were washed out; that the roots of trees were washed bare and the trees toppled and fell and were lost; that her loss in annual rental value was $500; and that the freehold had been damaged to the extent of $1,000; that in the river she owned a valuable dam site, appropriated by the State, which if it was not for the wrongful raising of defendant's dam, would have netted her more money from the State of New York when it made such appropriation; that the Hudson river is a public highway, and finally that the maintenance of said dam by the defendant, as maintained, in the manner complained of by plaintiff, constituted and does still constitute a public nuisance. Defendant denies plaintiff's allegations of damage; and alleges that it has maintained said dam, effective as to backing up water, for the past forty years before the commencement of this action; that for more than twenty years this defendant and its predecessors in title openly and notoriously maintained the dam at the point and on the part complained of (the western App. Div.] Third Department, February, 1921. part) at an equal or greater height than at that time; denies that it maintains a public nuisance, and that the river is a public highway. Upon the issue thus made, plaintiff demands judgment for $4,000 damage, that the nuisance as alleged be abated, and that plaintiff have an injunction preventing the maintenance of the dam at its present elevation. The court held that the Hudson river was navigable, a public highway; such finding is sustained by the facts and the law. (Danes v. State of New York, 219 N. Y. 67, and cases cited.) I am aware that an apparently different holding can be found. (Morgan v. King, 35 N. Y. 454.) In that case the question in dispute related to a part of the river that had not been used as a public highway nor so designated; the Hudson had been so used and permitted by the State. The weight of authority is to the effect that it is a public highway. The holding either way does not affect the rights of the parties as I conceive them to be and as they were finally submitted and determined. (United P. B. Co. v. Iroquois P. & P. Co., 226 N. Y. 39.) In.Melker v. City of New York (190 N. Y. 481) at page 488 of the opinion, the court says: "We think that each case must depend on its own facts for classification as a nuisance at law, or in fact, or neither." The trial court did not find that the maintenance of the dam was a public nuisance either in law or fact. Trespass against plaintiff's rights was found; if she suffered any of the damages alleged, she was entitled to such finding. (Heeg v. Licht, 80 N. Y. 580.) Plaintiff was not entitled to the more harsh finding. (Fort Plain Bridge Co. v. Smith, 30 N. Y. 44.) The trial court refused a permanent injunction. That is equitable relief. The equitable relief sought by plaintiff in this action is based upon her alleged legal cause of action. That she had a cause of action for something was properly found, viz., for damage. That the amount is on the wrong basis, and excessive, I shall show presently. Having properly found that plaintiff suffered some damage, which was a technical trespass, it does not follow that an injunction should issue. (McCann v. Chasm Power Co., 211 N. Y. 301.) The privilege accorded plaintiff, to apply at any time at the foot of the judgment, for an injunction, upon showing that the ends of justice required it, was all the relief plaintiff was entitled to in that regard; it will serve to prevent any adverse Third Department, February, 1921. [Vol. 195. or prescriptive right ripening in the defendant. The opinion of the court below (111 Misc. Rep. 485) says that the damage to the island was covered by an appropriation from the State and does not consider it as an element entering into his award in favor of the plaintiff. As aforesaid this action was commenced in June, 1912. Judgment was entered in April, 1920. Seven years and nine months between the two dates. Add to these figures six years prior to the commencement of the action and you have thirteen years and nine months. In considering the only question of any importance left for consideration, it is well to recall just what the trial court did in that regard. It found as to damage to the freehold as follows: "12. That the permanent depreciation in value to plaintiff's said farm from the effects of the dam if continued at its present height is $2000." In his opinion the learned judge says this finding is not to be considered effective, should either party elect to disregard it; an examination of the judgment shows that the plaintiff elected to disregard it, and of course the defendant had no intention to take advantage of such finding and could not do so in absence of plaintiff's acquiescence. The judgment is based on the difference of rental value, $1,400, as found by the court. After the eliminations hereinbefore referred to and considered, the rights of these parties are narrowed down to their respective rights as riparian owners. (United P. B. Co. v. Iroquois P. & P. Co., 226 N. Y. 38.) Starting with this premise a consideration of the several parties, their location and situation is necessary. We are referred to no rights given to or acquired by the defendant to overflow any lands that it does not own. The same is true as to the plaintiff. The title to the bed of the stream being in the State, the water flowing over that bed is held by the State for the use of the people as a whole, equally, with the exception that none can land on the land of the riparian owner without his, her or its consent. (Gould v. Hudson River R. R. Co., 6 N. Y. 522.) It follows that neither of these parties had or has the right to invade the rights of the other. The plaintiff's cause of action here cannot be based upon any other consideration. (Fort Plain Bridge Co. v. Smith, 30 N. Y. 44.) The evidence discloses that this farm lies on the west bank of the Hudson river; that for a consider י App. Div.] Third Department, February, 1921. able distance it borders on the river; that the fall in the river from the part of the farm involved here to the dam is about five feet; that the area involved is about thirty-five acres; these thirty-five acres are back of the buildings which are along the river bank; the bank at the edge of the water, at its natural flow, is about four or five feet above the water. The land from the edge or bank of the river slopes back toward the west to a decrease in the bank elevation at the brink of about one to two feet; it reaches its lowest level about the center of this thirty-five acre piece. Immediately west of the aforesaid plot of land the land commences to ascend toward the west and north. Before the times complained of herein and now there was and is a main ditch on the north bounds of the farm discharging into the Hudson river; it started from about the center of the alleged affected area. To the south there was and is another ditch, running for several hundred feet along the southern boundary of the farm; it crosses the corner of the Austin farm, crosses the road in a culvert, and discharges through a ditch about three feet deep into the river. This ditch starts from the same point as the one on the northern boundary. This thirty-five-acre plot, which it is claimed is destroyed, is gridironed with ditches; they empty into these main ditches. There are springs upon this piece of land, and its general description is that it is and always was low, much of the time wet, and of marsh formation. These ditches were all dug before there was any complaint or reason for complaint about the overflow from the dam in the river. Were they dug and maintained in anticipation that at some future time a dam would be built or raised that would impede the flow of the river so that it would back up onto the land? It seems to me from this evidence that similar conditions to what is now claimed existed before 1894. The elevation at the dam is 115; at the bottom the Austin ditch, viz., the one draining the farm from the south, is 117; in feet and inches, the bottom of the southern ditch is two and one-half feet above the crest of the dam; in order to overflow the banks of the river on this farm the water would have to be some eight or nine feet over the crest. The river is nine hundred feet wide opposite the farm, and seven hundred feet at the dam. Because of the peculiar formation of the river above the dam, a raise of a foot Third Department, February, 1921. [Vol. 195. at the dam would not effect a raise of over four to six inches in the wide expanse of water opposite the farm. The claim that the water ever overflowed the banks, except in extreme freshets, is not sustained by the evidence; it is obvious that when the river rises from natural causes the dam has no effect on it at its present elevation. It is proven and practically conceded that the only way the plaintiff's land is overflowed by water from the river is through the ditches, the bottom of which are from three to five feet below the surface of the bank. The defendant is consequently charged, in this judgment, with damage it is claimed comes from water let into the ditches dug and maintained or caused or permitted to be by the plaintiff and her predecessors. More than that, defendant is charged with all of the damage it is claimed is done by the water upon this land, from every source, as if it all came through the ditch from the river. Plaintiff's sonin-law swore that the annual rental value of the farm in its present condition was $500, and without the condition alleged to have been created by the raising of the dam, $750. No other evidence was given. We are not left in doubt as to how he computes the damage. On cross-examination he was asked these questions: "Q. Regardless of how the water came to be backed in there, according to your statements. In other words, you assumed that whatever water came on there was put back there by the dam, didn't you? A. Yes, sir. The Court: That is, so far as you are testifying on the question of damages? A. Yes, sir." The evidence leads to the irresistible conclusion that only a very small portion of the water that is seen at times upon the land comes from the river and main ditches. The evidence shows that when the owner occupied and worked this farm it was a good producer; that he kept the ditches open, and that now they are, more or less, filled up; that the farm for years has been run by hired men, renters, or on shares. It is a matter of common knowledge that river bottoms (land along the river) are always low and consequently damp; that the forests of the Adirondacks have been much thinned out, so that the snows are not held and slowly melted; they are now exposed to the sun, melt rapidly and the waters come down. They reach this plot, prepared by these ditches to receive them; those are depres |