Gray v. Village of Fort Plain
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, The Village of Fort Plain, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 16th day of August, 1904, upon the report of a referee. The action was brought to recover damages for diverting the waters of North creek, a stream flowing through a farm of about ninety-six acres owned and occupied by the plaintiff, and to enjoin the defendant from continuing such diversion.
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Appeal by the defendant, The Village of Fort Plain, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 16th day of August, 1904, upon the report of a referee. The action was brought to recover damages for diverting the waters of North creek, a stream flowing through a farm of about ninety-six acres owned and occupied by the plaintiff, and to enjoin the defendant from continuing such diversion. The defendant in 1902 constructed a dam twenty-two feet high, with an apron twenty-two feet wide across said creek about a…
1Opinion of the Court
Chester, J.:. The defendant had never condemned the right to divert the waters of this stream from its natural channel. The plaintiff, as a riparian owner of lands on the stream below the point of diversion, was entitled to the full flow of all the water of the stream, even if he had never yet needed or used it. This was none the less a property right of his simply because he had never utilized it. (New York Rubber Co. v. Rothery, 132 N. Y. 293 ; Gallagher v. Kingston Water Co., 25 App. Div. 82.) And it was a right of which he cannot be deprived without his consent, except by condemnation. *218and…
2Cases cited3 opinions
- New York Rubber Co. v. RotheryNew York Court of Appeals · 1892
- Gallagher v. Kingston Water Co.Appellate Division of the Supreme Court of the State of New York · 1898
- Standen v. New Rochelle Water Co.New York Supreme Court · 1895
3Cited by2 opinions
- Loranger v. City of FlintMichigan Supreme Court · 1915
- Hartzell v. Village of HamburgNew York Supreme Court · 1935