April Term, 1901.
John Van Voorhis, for the appellant.
George D. Reed, for the respondent.
For more than fifty years, and as far back as the recollection of the oldest inhabitants extends, and before the hand of man had done anything to affect the drainage in this locality, the stream ran continuously, except for a few months in very dry seasons, through the premises now owned by the respective parties to this litigation, in the channel which defendant has obstructed, draining a very large watershed, and supplied by living springs. This constituted a natural watercourse which defendant Corning, as owner of the servient estate, was obligated to keep free and unobstructed for the benefit of plaintiff, the owner of the dominant estate. (Gould Waters, §§ 41, 225, 263, 264; 24 Am. Eng. Ency. of Law, 900; 24 id. 926; Barkley v. Wilcox, 86 N.Y. 143; Jeffers v. Jeffers, 107 id. 650; Wharton v. Stevens, 84 Iowa 107, 114.) The only serious question that arises is with reference to the effect of the deepening of the channel through defendant's premises upwards of forty years ago. The case, however, was not tried and has not been presented to us upon the theory that if a natural watercourse existed its enlargement, as stated, was under a revocable license. The evidence on that point seems to have been brought into the case by plaintiff's counsel, either incidentally or accidentally. It consists of part of the testimony given by a witness called in behalf of plaintiff on rebuttal, and appears to be uncontradicted as to the fact that defendant's predecessor in title joined in making the improvement. The property owners affected by the inadequacy of the watercourse, to prevent the overflowing of their lands and its insufficiency to so drain such lands as to render the same available for early tilling, formed a bee to straighten and deepen the watercourse for the better drainage of their lands. They determined upon a plan and carried it into execution, for aught that appears in the record, under a claim of right which was acquiesced in by the owner of the premises where the channel has now been closed. It is apparent that this improvement was designed to be permanent, for it is not probable that the other property owners would till and crop their lowlands, leaving it optional with defendant and her predecessors in title at any time to destroy the crops by filling the bed of the stream, and thus causing the water to overflow the premises above. The enjoyment of the improved watercourse by the owners of the property benefited thereby, as contemplated by all parties interested, is not consistent with the right of defendant to restore the channel to its condition as it existed before being thus improved. If this were wholly an artificial ditch or channel excavated under a parol or written license intended to be perpetual, defendant would doubtless have the right to revoke the license even though a consideration had been paid therefor. ( Babcock v. Utter, 1 Keyes, 397; Wiseman v. Lucksinger, 84 N.Y. 31; Cronkhite v. Cronkhite, 94 id. 323; Crosdale v. Lanigan, 129 id. 604; White v. Manhattan R. Co., 139 id. 19.) But this extreme doctrine which, upon grounds of public policy, precludes the enforcement of the license after part or full performance, thus constituting a departure from the rule adopted by courts of equity concerning other contracts relating to real estate ( Newman v. Nellis, 97 N.Y. 285; Rindge v. Baker, 57 id. 209; Dempsey v. Kipp, 61 id. 462; Wheeler v. Reynolds, 66 id. 227; Wiseman v. Lucksinger, 84 id. 31) has no application to the case at bar. Assuming, without so deciding, that this doctrine would apply to that part of the channel of the watercourse which is new and did not exist prior to the improvement to which allusion has been made, it is impossible to ascertain from the record before us the precise changes that were made in the watercourse through defendant's premises at that time. The evidence is quite general and indefinite, and while indicating that the channel was deepened through the rock, the court could not formulate a decree therefrom by which defendant's right of revocation could be enforced without trenching upon the rights of other property owners to have the watercourse kept open and unobstructed as it originally existed. In order to overcome the presumption of a grant and the acquisition of the right by adverse user, the burden was on defendant to show that the deepening of the channel forty-two or forty-three years ago was under a license from her predecessor in title. (Gould Waters, § 341; Hammond v. Zehner, 21 N.Y. 118; Townsend v. McDonald, 12 id. 381; Ward v. Warren, 82 id. 265; Heiser v. Gaul, 39 App. Div. 162, and cases cited; Pierrepont v. Barnard, 6 N.Y. 285.) The defendant and her grantors having acquiesced for nearly a half of a century in the enjoyment of this improved watercourse by plaintiff and his predecessors in title, she cannot be permitted to close it entirely now merely on account of its having been artificially deepened and enlarged. ( Vannest v. Fleming, 79 Iowa 638.)
It does not appear that the watercourse overflowed its banks on defendant's premises in consequence of the lateral ditches or drains running into the stream from the premises of plaintiff and others. Artificial lateral drains into a natural watercourse, although they at times increase the flow of water therein and at other times decrease it, to the injury of those lower down the stream with reference to the supply and use of water, are not unlawful, provided the stream is not thereby made to overflow its banks. ( Waffle v. New York Central R.R. Co., 58 Barb. 421; affd., 53 N.Y. 11; McCormick v. Horan, 81 id. 86; Noonan v. City of Albany, 79 id. 470; Barkley v. Wilcox, 86 id. 140; Peck v. Goodberlett, 109 id. 180.)
We find no exception which constitutes a reversible error or requires extended consideration.
It follows that the judgment appealed from should be affirmed, with costs.
All concurred, except McLENNAN, J., who dissented.
Judgment and order affirmed, with costs.