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lot of land, a valuable building on the south side of said Hollow road, about sixty feet easterly from the northwest corner thereof, and about two hundred and forty-eight feet westerly from the west boundary:line of the said lot, conveyed by the said plaintiff to the said Richard Carter, as above stated, for the purpose of carrying an the business of manufacturing India rubber therein, in the manufacture of which extensive machinery is used, and power to drive or carry said machinery absolutely necessary; that said building is erected over and upon said stream of water, and upon its natural bed or channel, and at a place where all the power necessary to drive or carry said machinery coúlų be obtained from said stream of water; and that said building is nearly completed and fit for use.
And the said plaintiff further avers, that the said Richard Carter threatens to, and is about to, divert said stream of water from its said natural bed or channel, at a point about one hundred and seventy-five feet easterly from the plaintiff's said buildings, and to carry or convey the said stream of water from thence, through troughs, canals or otherwise, across or under the said Hollow road to the north side thereof, and from thence down along the north side of said road to the said Poestenkill, in such a manner as to conduct or carry the whole of said stream of water away from the plaintiff's said building; and that the said Richard Carter, on the 1st day of December, 1849, commenced digging a canal, or water-course, at the point last aforesaid, for the purpose of laying down logs and trunks, through which to divert, carry and conduct the said stream of water from its natural channel as aforesaid; and although then and there requested and directed by the said plaintiff to desist from the same, the said defendant, without right, and contrary to law, still continues to prosecute the same.
And the said plaintiff further avers, that he has no means by which he can obtain power to drive or carry the said machinery in his said. India rubber factory, except that derived from the said
stream of water as it now flows in its natural channel, and has so flowed from time immemorial, and that if the said Richard Carter succeeds in diverting the said stream of water from its said natural bed or channel, as he is about to do, as above stated, that he, the said plaiņtiff, will be entirely deprived thereby of power to drive or carry the said machinery in his said India rubber factory; and that the said plaintiff's said building will thereby be rendered and become valueless to the said plaintiff: and the said plaintiff will otherwise sustain great damage, by having his said business for the manufacture of India rubber impeded and destroyed, together with the profits arising from said manufacture; and that the said Richard Carter is not now, and would not be, in the opinion of the said plaintiff, at the termination of this action, the owner of property, real or personal, sufficient to satisfy the said plaintiff for the damage he would ultimately sustain from the diversion of the said stream of water from its natural channel, as aforesaid, as the said Richard is now doing and about to do.
And the said plaintiff demands judgment in this action against the said Richard Carter, that he, the said Richard, may be enjoined and perpetually restrained from diverting the said stream of water, from its said present bed or channel, in such a manner as to carry the said stream of water, or any part thereof, away from the said plaintiff's said building, so erected as aforesaid, and from doing any act tending to divert the same, or in any manner interfering with, damaging, or injuring the said plaintiff's said water power, privileges, lands and tenements, so owned, occupied and possessed by him aforesaid, with costs, &c.
PIERSON & SMITH,
To restrain defendant from unlawful use and diversion of
water power, and compel him to restore water-course to its former state.
SUPREME COURT-RENSSELAER COUNTY.
Erastus Corning and Joho F. Winslow
The plaintiffs complain of the defendant, and allege the following facts, constituting their cause of action : That said defendant is a body corporate, duly organized and incorporated under the laws of the State of New-York.
That the said plaintiffs are the owners, as tepants in common, in fee simple, of the following described premises and real estate, situate in the sixth ward of the city of Troy, and bounded as follows [insert description of premises, ending as follows] : “containing seven acres, two roods and thirteen perches of land, excepting and always reserving one acre of land on the south side of the creek, and adjoining the creek where the line crosses the said creek, unto Stephen Van Rensselaer, Esq., and to his heirs and assigns," as the said premises are substantially described in a certain lease thereof, &c., &c.
And the plaintiffs further allege, that said excepted acre is now in possession of, and, as the plaintiffs are informed and believe, owned by, the defendant; and that the Wynantskill, as it winds and runs through the southerly portion of plaintiffs lot, as above described, is the northerly, easterly and westerly boundary of said excepted acre, separating it from the said lands of the plaintiffs, which lands are bounded on the southerly part thereof by, and include that portion of, said kill or creek ; and the said plaintiffs are the owners of the water powers and privileges, falls of water, right of use and easements of every kind, of, in and to that portion of the said Wynantskill so forming a part of the southerly boundary of their premises, as above described, which rights, privileges and easements appertain and belong to the above described land of the said plaintiffs.
That said lands are of great value for present and future improvement, by the erection of mills or manufacturing establishments, whose motive power can be supplied by the waters of said creek, in the rightful use, by the said plaintiffs, of their said water power, privileges and easements; and that the value of said premises and rights depends, in a great degree, upon a free flow of the waters of said creek in its natural channel, and the plaintiffs' right to their uninterrupted and lawful use.
And the said plaintiffs aver, that they are, and their grantors have been since the year 1789, and prior to that time, lawfully seized in fee simple of said premises, and of said rights, privileges and easements.
And the plaintiffs further aver, that for many years, and up to and until the latter part of the year 1839 or the beginning of the year 1840, there was a dam, called the “ shovel factory dam,” built across said creek, near the lower or southwesterly bank thereof, as it winds and turns around said excepted acre, and near the lower or southwesterly corner of the said excepted acre; that said dam raised and set back the water in said creek around the whole of said land, and as far as the northeasterly corner of said excepted acre, or where the south line of said plaintiffs' premises crosses the said creek; and that the entire stream at that time, and always previous thereto, without diversion or diminution, flowed in the natural channel of said creek, up to said shovel factory dam, which dam created a power, at all points, around the entire bend of said creek, on the plaintiffs' premises, equal to the entire volume of water in the creek, under a fall of six feet, and that, for more than twenty years immediately preceding the time it was removed, said dam was extensively used for manufacturing purposes.
That, at the time last mentioned, to wit, the latter part of the year 1839 or the beginning of the year 1840, the defendant was in temporary possession of the premises now owned by the plaintiffs, as above described, under a lease from plaintiffs' grantors, which lease has expired, and expired previous to the conveyance of said premises to the plaintiffs, on the 25th July, 1852; and said defendant was also in possession of said excepted acre, the said defendant having come in possession of both premises, long after the said shovel factory dam was erected, and while the whole body of the waters of said creek continued to run in its natural bed or channel around the entire bend of the stream.
That, being so in possession at such time, to wit, the latter part of the year 1839 or the beginning of the year 1840, the said defendant removed the shovel factory dam, and, by means of a ditch or trunk, leading from a dam then standing across said creek, a short distance south of the plaintiffs' premises and said excepted acre, called the rolling mill dam, and subsequently, and since about the year 1846, by means of a ditch or trunk, leading from what is called the reservoir dam, situated a short distance farther up the stream, and south of said premises, wrongfully diverted, and ever since that time so continues to divert, the waters of said stream, or the greater part thereof, from