LANDON, J.

Upon the former appeal ( 107 N.Y. 310) this court held that it was for the jury to determine upon the evidence whether the plaintiff's riparian rights were injured by the defendants' use of the water; that the test was whether that use "was such that at various times the quantity which would otherwise have flowed past plaintiff's lots was perceptibly and materially diminished, and to such an extent that frequently when the water was running through the tail-race of defendants there was none running over or through the dam except leakage, and, of course, none flowing past the plaintiff's lots, the whole substantial part of the water of the stream going through defendant's tail-race instead of down its original and natural channel." Upon the retrial the evidence was addressed to this subject, and the question presented upon the present appeal is whether the plaintiff's exceptions to the charge of the learned trial court and to the refusals to charge are valid.

The court charged the jury that if the defendants used and diverted the water to a degree that materially and appreciably lessened its flow along the lots of the plaintiff, the plaintiff was entitled to recover nominal damages. But the court also charged: "These defendants have the right to use this water to run their wheel, provided they do not interfere with the stream to an extent which you can say is both appreciable and material. That question will, of course, be determined with reference to the land as it was, and not with reference to the future for an instant. Be sure as to that; do not change the question from just what it is: Have the Rotherys, by this water-course, diverted the water so as to leave the stream to a material and appreciable extent insufficient for the purposes of plaintiff's business? Now, gentlemen, that is all there is of the case." The plaintiff excepted to this portion of the charge and requested the court to charge "that the plaintiff's right to maintain this action and to recover a verdict for nominal damages, does not depend at all upon the plaintiff's showing any actual or any perceptible damage, but solely upon the question whether the defendants have, by the use of their race, at any season of the year diverted water from Matteawan creek, and thereby have reduced perceptibly and materially the volume or current of water which otherwise would have flowed by the plaintiff's premises." This was refused.

Both the charge and refusal were erroneous.

The plaintiff's right to recover nominal damages was substantial, though the quantity of damages was not. The defendants probably did leave water enough in the stream for the purposes of the plaintiff's business, as that business had been conducted. But the plaintiff's title to its water rights, and its right to redress for their invasion, were not conditional upon the beneficial user of them. ( Corning v. Troy Iron Nail Factory, 40 N.Y. 191; Crooker v. Bragg, 10 Wend. 260; Webb v. Portland Mfg. Co., 3 Summer, 189; Parker v. Griswold, 17 Conn. 288; Clark v. Penn. R.R. Co., 22 Atlantic Rep. 989.)

The plaintiff may, however, lose its title by the defendants' prolonged adverse user of the water of the stream, and this is the more probable if such adverse user is protected by the verdict of the jury. It is not improbable that this action was brought to prevent the defendants from acquiring a prescriptive right to divert the water. The charge which makes "the purposes of the plaintiff's business" material to its right to recover and cautions the jury to regard plaintiff's land "as it was, and not with reference to the future," tended to lead the jury to disregard the inviolable character of the plaintiff's property rights, or at least expose them to sacrifice if plaintiff's actual and immediate pecuniary damages were inappreciable. The plaintiff might thus lose its right to the beneficial use of the water as it was accustomed to flow before defendants began to divert it, simply because it had not as yet found it convenient to use it. In such a case, nominal damages given confirm the plaintiff's right, but withheld, impeach and may destroy it. ( Hammond v. Zehner, 21 N.Y. 118.)

The request to charge presented the plaintiff's rights clearly. ( Garwood v. N.Y.C. H.R.R.R. Co., 116 N.Y. 649.)

The defendants' counsel contends, and his contention is not wholly unsupported, that the court did, in his main charge, instruct the jury substantially as the plaintiff requested, and also instructed the jury substantially and nearly literally in the language of the opinion of this court. The evidence, however, tends to show that the defendants diverted into their race nearly the whole volume of the stream, during a considerable portion of each year, leaving only the small part which escaped from the dam through leakage to flow past the plaintiff's upper lot and the greater part of its lower one. The verdict can hardly be accounted for, except upon the theory that the jury were influenced by that portion of the charge, and by that refusal to charge upon which we have commented. These seem to have prejudiced the plaintiff.

The judgment should be reversed, and a new trial granted, costs to abide the event.

All concur, except FOLLETT, Ch. J., not voting.

Judgment reversed.