Statement of case.

1 Kent & Radcliff's Ed. of Rev. Laws, 1802, 601, § 34; 2 Rev. Laws, Van Ness & Woodworth's ed., 1813, 285, 287, 300.) No right by prescription can be gained to continue a public nuisance, or to commit a misdemeanor. (Washburn on Easements [3d ed.], 511; Crill v. City of Rome, 47 How. 398; Wood on Nuisances, 722, 743; Mills v. Hall, 9 Wend. 316; People v. Cunningham, 1 Denio, 536; Burbank v. Fay, 65 N. Y. 57, 69; Holman v. Johnson, 1 Cowp. 341, 343; Broom's Leg. Maxims, 576; Woodworth v. Bennett, 43 N. Y. 273; Saratoga Co. B'k v. King, 44 id. 87; Rolfe v. Delmar, 7 Rob. 80; 3 Wait's Act. and Def. 198, 199; Croker v. Whitney, 71 N. Y. 161; Coppell v. Hull, 7 Wall. 542, 558-9; Holt v. Green, 13 Am. Rep. 737, 739; Rose v. Truak, 21 Barb. 361; Tylee v. Yates, 3 id. 228; La Farge v. Herter, 9 N. Y. 243; Pease v. Walsh, 49 How. 269; Clancy v. Onondaga Salt Co., 62 Barb. 395, 407; Bishop on Contracts, § 458; 2 Smith's Lead. Cas. [7th ed.] 283, marg. p. 306; Bell v. Quinn, 2 Sandf. 146; Hull v. Ruggles, 56 N. Y. 424; Gray v. Hook, 4 id. 449, 459; Benton v. Post, 20 Barb. 397; Leavitt v. Palmer, 3 N. Y. 19; Niver v. Best, 10 Barb. 369; Seneca Co. B'k v. Lamb, 26 id. 595; Nellis v. Clark, 20 Wend. 24.) It makes no difference whether the dam actually interfered with the public navigation of the river or not. It was a nuisance per se. (People v. Vanderbilt, 38 Barb. 282, 287, 291, 293; Chenango Bridge Co. v. Paige, 83 N. Y. 178; Burbank v. Fay, 65 id. 70, 71; 26 How. 124; Hart v. Mayor of Albany, 19 Wend. 571, 584; People v. Cunningham, 1 Den. 524; Morton v. Moore, 15 Gray, 573.) The legislature has no power to allow plaintiffs to divert the water from defendant's mill, which he is entitled by law to have run there. He could have restrained plaintiffs' diversion thereof. (Smith v. City of Rochester, 17 N. Y. Weekly Dig. 298; Swindon Water-works v. Wilts Canal, L. R., 7 H. L. 697; 14 Eng. Rep. 86.) A water-course is real property, and the right to have water flow in it is incidental and appurtenant thereto. (Ditch Co. v. Canal Co., 2 Col. 473; Cary v. Daniels, 5 Metc. 236; Gard

Statement of case.

ner v. Newburgh, 2 Johns. Ch. 162; 7 Am. Dec. 526, 531, notes; Brooklyn v. McIntosh, 133 Mass. 215.) A diversion of a water-course by the authority of a riparian proprietor, to enable a company to supply, in part, a village with water, is a legal wrong to another riparian owner, who thereby sustains a perceptible and substantial damage. (Higgins v. Flemington Water Co., 36 N. J. Eq. 538; Gardner v. Village of Newburgh, 2 Johns. Ch. 162; 7 Am. Dec. 526,,531, note; Smith v. Rochester, 17 N. Y. Weekly Dig. 298; Milhau v. Sharp, 27 N. Y. 611; Pettis v. Johnson, 56 Ind. 139; DeLaney v. Blizzard, 7 Hun, 7; Francis v. Schoellkopf, 53 N. Y. 152, 154-5.) Even if the reservation is to be construed as a measure of quantity, or, as the referee finds, "a reservation power," it does not confer the right to use the water or the power in any other place than where they contracted to use it. (Comstock v. Johnson, 46 N. Y. 615.)

E. M. Harris for respondents. The referee correctly decided that, as against the defendant, plaintiffs had the right to keep up the dam to any height required to obtain the water necessary to run their machinery. (Ec parte Jennings, 6 Cow. 518, 527, 543; People v. Platt, 17 Johns. 195; Chenango Bridge Co. v. Paige, 83 N. Y. 178, 185; People v. Gutchess, 48 Barb. 656; Canal Com'rs v. Tibbets, 5 Wend. 423, 448 ; Stow v. Child, 20 id. 149; Morgan v. King, 35 N. Y. 454; 3 Kent's Com. 412, 428.) The plaintiffs, being the owners of the bed of the stream and of the water as far as their land extends, had the right to use the land and water in any way not inconsistent with the public easement. (Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Jackson v. Hathaway, 15 Johns. 447; Angell on Water-courses, $$ 541, 546; Thompson on Highways, 21, 22, 23.) This being a fresh-water river and not navigable, in fact, all the public have in the stream is a right of way only; the public is the only party that can complain of the height of the dam as an interruption of navigation. (People v. Gutchess, 48 Barb. 656; Fort Plain Bridge Co. v.

Opinion of the Court, per EARL, J.

Smith, 30 N. Y. 44, 63; Chenango Bridge Co. v. Paige, 83 id. 178, 185.) Legislative authority was not necessary in this case to authorize the erection of the dam across the river at the locus in quo. (Chenango Bridge Co. v. Paige, 83 N. Y. 178, 185, 186; Fort Plain Bridge Co. v. Smith, 30 id. 44.) It cannot be assumed, on the facts in this case, that the dam in question is a public nuisance; that is a fact to be established by evidence. (Mayor v. Curtis, Clark's Ch. 336, 344; Peckham v. Henderson, 27 Barb. 207, 210, 211; People v. Vanderbilt, 26 N. Y. 287, 293; People v. Gutchess, 48 Barb. 656, 666; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44, 63; 2 Rev. Laws of 1813, 287.)

EARL, J. The rights of the parties depend upon the true construction of the reservation contained in the deed of 1841. It is very clear that the grantor in that deed, for the small consideration then paid by the grantees, did not mean to cripple the large and valuable factory by depriving it of any water power it might need to propel its machinery. If the defendant's contention is right, that he can draw water for his mill whenever the water in the pond is so high that it would run over a dam not more than nine feet high, then he can run his mill most of the time, many times when the factory cannot be run, and instead of having a secondary right to the water he will have substantially the primary right. That the parties to the deed intended to effect such a result cannot be presumed.. The reservation is very comprehensive. The grantor was to have the use of the water reserved at all times; not only the use of the water in the dam, but in the river as it then was or might thereafter be; not only the water in the dam as it then was, but in any dam that might thereafter be erected; and it was to have not only all the water necessary to operate the machinery then in the factory, but also all the water necessary to operate any additional machinery which might be put in the factory, or in any building to be erected on the same site, of like or less dimensions.

The reservation of water sufficient to operate the machinery

Opinion of the Court, per EARL, J.

then in the factory was general. The reference to such machinery was not to limit or define the purpose for which the water could be used, but to measure and limit its quantity. (Cromwell v. Selden, 3 N. Y. 253; Olmsted v. Loomis, 9 id. 423; Wakely v. Davidson, 26 id. 387; Comstock v. Johnson, 46 id. 615.) The reservation was of that quantity of water power, and that could be used for any purpose and anywhere. There is nothing in the reservation confining the use of that power to the factory building; but if the grantor desired water for additional machinery, then it could be used only for such additional machinery as it should place in the same building, or in one not larger, to be placed upon the same site. There was not a reservation of power sufficient to operate all the machinery which the factory could contain, but only all the machinery then in the factory, or which might thereafter be placed therein, or in any building not larger, to be erected upon the same site. Therefore, when the grantor used all the power requisite to operate the machinery then in the factory it had no right to use any more power to operate additional machinery not in the factory, although such additional machinery could have been placed in the factory. To come within the terms of the reservation, the additional machinery must be in the factory. The additional machinery was not only to be a measure of power, but also a limitation upon the use of the power. The quantity of water needed for the machinery then in the factory could then be known and measured, but the quantity which might be required for additional machinery could not then be known or measured, and hence there was the limitation as to such machinery. But the grantor made an absolute reservation of a quantity of water sufficient to operate the machinery then in the factory, and that water it could use anywhere. That results from the fact that it owned the water, and reserved it, and no one could control it in the use thereof. It could use a portion of it to operate machinery in the factory, and the rest to operate machinery in some other building, or it could use the whole of it in a building located upon some other site; and so the law was recognized to be in the case of

Opinion of the Court, per EARL, J.

Comstock v. Johnson (supra). In that case there was a grant of certain real estate, on which stood a carding machine, and clothing works and shops, and of the privilege of drawing from a dam sufficient quantity of water "for the use of said works." It was held that the terms used for granting the water were to be taken as a measure of the quantity, and not a limitation of the use of the water; and Chief Judge CHURCH said that the grantee "had the right to use the water for any machinery and in any place which he was entitled to occupy."

At the time of the execution of the deed to Clark and Moak, in 1841, the machinery in the factory required for its operation one hundred horse power, and hence so long as the plaintiffs did not use more than that quantity in the main building and the wing combined, the defendant had no cause to complain that they used too much. The finding is that the plaintiffs required to operate all their machinery only from fifty to sixty horse power, and hence if all the water in the river was required to produce that power, they were entitled to it as against the defendant.

The defendant claims, however, that the deed of 1841 is to be construed in reference to the circumstances then existing, and that, therefore, the plaintiffs are required to obtain their power from a dam no higher than that then existing. We think otherwise. The reservation was of a definite quantity of water, "at all times," and hence that the plaintiffs could have that water, they had the right to hold and store it until they could take it, and thus produce the power to which they were entitled. There was no limitation as to the height of the dam. The grantor could take the water from that dam or any dam which might thereafter be erected. It was to have water enough to operate its machinery, and if that dam would not furnish it, it could erect another that would. If it had been intended to confine the dam which might thereafter be erected to the same height, a limitation of so much importance would probably have been plainly expressed, as the limitation was in reference to the size of any other factory building which might be erected on the same site. Construing the reservation in the light of all the