Opinion
March Term, 1903.
M.D. Murray and Andrew J. Nellis, for the appellant.
William A. McDonald, for the respondent.
An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right. ( Gray v. Man. R. Co., 128 N.Y. 509; Garvey v. Long Island R.R. Co., 159 id. 323.)
When, however, the damages are substantial, the fact that an injunction would interfere with great industries, the development of natural resources, or with the plans of a great city for drainage, is not a sufficient reason for relaxing the ordinary rules governing the rights of riparian owners of land. ( Strobel v. Kerr Salt Co., 164 N.Y. 303.)
Where wrongful interference with the waters of a stream causes substantial injury, an injunction to the person so substantially injured is a matter of right. ( Sammons v. City of Gloversville, 34 Misc. Rep. 459, and cases cited; affd. in this court, 67 App. Div. 628.)
The rule in regard to lands bounded on a non-navigable stream applies also to lands bounded upon artificial watercourses, as a canal, a ditch or such like. In either case the presumption is that the adjoining landowner has title to the center of the stream, but this presumption may be rebutted by evidence. (4 Am. Eng. Ency. of Law [2d ed.], 832; 5 Cyc. 900.)
The trial court was in error in holding as a conclusion of law that upon the facts found by it the plaintiff was not a riparian owner nor entitled to injunctive relief. The plaintiff's damage being substantial, the judgment so far as it denies an injunction to the plaintiff should be reversed, with costs to the appellant, and an injunction should be granted to the same effect and containing the same provisions as in the case of Sammons v. City of Gloversville ( 34 Misc. Rep. 459).
All concurred.
Judgment so far as it denies injunction to the plaintiff reversed, with costs to appellant, and injunction granted to the same effect and containing the same provisions as in the case of Sammons v. City of Gloversville (as reported in 34 Misc. Rep. 459).