Rothery v. New York Rubber Co.
New York Supreme Court
Appeal from a judgment in favor of the plaintiffs, entered upon tbe .trial of this action by the court without a jury, and from an order denying a motion for a retaxation of the costs.
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Appeal from a judgment in favor of the plaintiffs, entered upon tbe .trial of this action by the court without a jury, and from an order denying a motion for a retaxation of the costs. This action was brought to recover the damages occasioned by reason of the defendant’s setting the water of the Fishkill creek back upon the plaintiffs’ premises, and also for a judgment or decree directing the defendant to take down its dam to such an extent as to leave the water in said Fishkill creek to pass through and by the plaintiffs’ premises the same as the water flowed in said creek before the…
1Opinion of the Court
Gilbert, J.:
The rules of law governing this class of eases are perfectly well settled. The defendants had no right to erect their dam to such a height as to set the water back upon the plaintiffs mill so as to materially interfere with the running thereof. Such a dam is a nuisance, and a court may grant relief to the party injured by granting an injunction restraining the continuance of the nuisance, or by ordering the dam to be lowered to such a height as will abate the nuisance. (Mann v. Wilkinson, 2 Sum., 276; Farnam v. Blackstone Carnal Co., 1 id., 46; Pixley v. Clark, 35 N. Y., 521;…
2Cases cited4 opinions
- Pixley v. . ClarkNew York Court of Appeals · 1866
- The Atlantic Dock Company v. . LibbyNew York Court of Appeals · 1871
- Haynes v. MosherNew York Supreme Court · 1857
- Hanel v. BaareThe Superior Court of New York City · 1863