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

their natural channel, around the whole of the stream, as it winds and turns through the premises of said plaintiffs, and after using the water of said creek for the purposes of defendant's new rolling mill, which is a large and extensive establishment, for the manufacture of iron, situated partly' on said excepted acre and partly on lands of defendant, adjoining said acre, on the south, and erected about the year 1840, the defendant restored, and has ever since restored, and still continues to restore to the creek the waters so diverted, at a point about two hundred feet below where the shovel factory dam stood, and below the above described premises of the plaintiffs, by means whereof the volume of water in said creek in its entire circuit through the plaintiffs' said premises is diminished, and its hydraulic power destroyed or impaired to such a degree as to render it utterly insufficient and worthless, for the purpose of propelling machinery or other hydraulic works, and the plaintiffs' premises injured and their value depreciated, and the plaintiffs, unless the court grant the relief hereinafter prayed, put to great and irreparable damage and injury in consequence thereof.

And the plaintiffs further allege, that at the time of, and for a long time prior to the time of, such diversion of said stream by the defendant, the water of said stream was used by defendant, as he lawfully might from said rolling mill dam, to propel the machinery of a rolling mill, situate on the north bank of said creek, partly on the extreme southern portion of what is now the plaintiffs' premises, as above described, and was then carried in a trunk or race across the stream, and used by defendant to propel the machinery of a nail factory, immediately opposite said last mentioned rolling mill, and situated at the southeast corner of said excepted acre, partly upon and partly off the same, and the water thus used was then wholly re

stored to the creek, at a place a few feet north of where it crosses the southerly line of and enters the plaintiffs' said premises, thus leaving the whole volume or current of the stream in its natural bed or channel, as it winds and turns around nearly the whole of said excepted acre, and through plaintiffs' said premises; nor was it ever diverted from such natural bed or channel until the building of said new rolling mill, and its diversion, by the defendant, at or about the time and in the manner herein before mentioned.

Wherefore the plaintiffs demand that the defendant be perpetually enjoined and restrained from diverting said stream, or turning the waters thereof from their natural bed or channel, by means of any ditch or trunk, or otherwise, or from drawing and using the same, in the manner now done by said defendant.

Also, that said defendant be adjudged to restore the waters of said Wynantskill to their natural bed or channel at the place where they were heretofore restored, after their proper use by defendant, to wit, at or near the south line of the said excepted acre, adjoining the point where the said creek crosses the plaintiffs' southerly line into their premises.

Also, that said defendant be adjudged to pay the plaintiffs the damages sustained by them by reason of such diversion of said stream, in the sum of one hundred dollars, or for such other or further relief as the court shall think proper to grant, with costs of this action.

S. & V. S.,

Plaintiffs' Attorneys.

(No. 19.)

For injunction to restrain unlawful use of trade marks, praying an account of profits and payment thereof to plaintiff.

SUPERIOR COURT-OF THE CITY OF NEW-YORK.

William P. Fetridge
agt.

Marvin J. Merchant, John Doe and Richard

Roe.

The plaintiff, for complaint in this action, alleges: That he is informed and believes, that about ten years since, a person named A. de Fontaine, then a resident of Boston, Massachusetts, invented a preparation, or compound or cosmetic, for beautifying the complexion, curing diseases of the skin, for shaving, cleansing the teeth, for the toilet and for the nursery, for bathing, and many medicinal purposes, and gave thereto the name of "Balm of Thousand Flowers."

Plaintiff is informed and believes, that the said De Fontaine commenced to manufacture the said preparation, or compound or cosmetic, and to vend the same, under the name of "Balm of Thousand Flowers," and was the first person who selected or used said name, and the first person who introduced said preparation or compound to the public, and continued to manufacture and vend the same, under the name aforesaid, until on or about the 14th day of October, 1854, when the plaintiff purchased from said De Fontaine the recipe for the said preparation, compound or cosmetic, and the sole right to make and vend the same, and he has ever since continued to be the sole owner thereof.