the location impaired, but the value of the premises and improvements thereon lost and destroyed. And the plaintiff further states, that it is impossible for him to protect his said premises, or to guard against or prevent such result, if the said excavations are pursued; and that the said defendant has not, in any manner, propped up or supported the plaintiff's premises, but has wholly omitted and neglected so to do. And the plaintiff further states, that the said defendant intends, as this plaintiff is informed and believes, to carry on the said excavations up to the line or boundary of plaintiff's premises. And he further states, that on the 21st day of May, 1853, the said defendant served, or caused to be served, upon the plaintiff, a notice to that effect, a copy of which is hereto annexed, marked A. And the plaintiff further says, that at the time of receiving the aforesaid conveyance from the defendant, in 1846, he was entirely ignorant that the defendant's premises had been used for any considerable number of years as a brick yard, or for the purpose of excavating earth or clay for the making of brick. And the plaintiff further says, that said excavations were carried on upon the defendant's premises for a considerable time after the conveyance to him, the said plaintiff, as aforesaid, before the plaintiff discovered any injurious effects therefrom to his said premises. But the plaintiff, anticipating ultimate danger therefrom, long ago, and repeatedly since the said conveyance to him, requested the defendant to desist from prosecuting the said excavations further, and threatened proceedings against him to compel him so to desist; but the defendant has always neglected and refused so to do, and still neglects and refuses. And the plaintiff further states, that the defendant is the owner of a track of land, situate a short distance from the defendant's premises, above described, and about 350 yards from the brick yard of the defendant, above mentioned; which track contains twelve acres or more of land, and is mostly of clay soil, and of as good quality for making brick as the soil of the defendant's premises above described, where excavations have been made, as aforesaid, and that the said land is convenient and easy of access for getting clay, and that a sufficient supply of clay, for the defendant's said brick yard, can be obtained from said tract of land, for at least fifty years to come, without interfering with, or endangering, or injuring the lands adjoining the defendant's said tract. Wherefore the plaintiff demands, that the defendant may be enjoined and commanded, by an order of this court, in the nature of an injunction, to cease and desist from digging and excavating in or upon his premises, above described, for the purpose of obtaining clay or earth to manufacture brick, and that he be commanded and enjoined not to dig or excavate, for the said purpose, in or upon the said premises. And the plaintiff also prays that the said injunction, not to dig or excavate for the said purpose, be made perpetual; and for an account of and compensation for the damage already sustained by the plaintiff, from the defendant's excavations and wrongful acts aforesaid; and for the costs of this action; and for such further or for such other relief as this court may deem meet and proper in the premises. HOGEBOOM, PORTER & BOIES, (No. 16.) For perpetual injunction against defendant, restraining him from turning the course of a creek upon lands of plaintiff; and for damages for trespass in digging channel for said creek. SUPREME COURT-RENSSELAER COUNTY. Bernhard U. Sharpe Michael Warner. The plaintiff complains of the defendant, that on the 2d day of November, 1853, and at divers other times between that time and the commencement of this action, the defendant broke and entered the close of the plaintiff, situate in the town of Greenbush, county of Rensselaer, and did, by himself, his servants or agents, divert and turn the course of a certain stream, called the Wynantskill, upon and through the said lands of the plaintiff, and did dig and construct, upon and through the lands of the said plaintiff, a trench or channel of the width of half a rod, or thereabouts, and of the length of about one hundred and fifty yards, in and through which he, the said defendant, and his agents and servants, did divert and turn the water of said creek from its natural bed or channel in and through the lands of the said plaintiff, to the damage of the plaintiff of the sum of two hundred and fifty dollars, for which he demands judgment.1 1 In this complaint, two causes of action are united, one legal and the other equitable, as they were formerly denominated. The former was the ordinary action of trespass to lands, and the latter an equitable action to restrain the commission of an irreparable injury; both, how Second. And for a further complaint against said defendant, the plaintiff says, that the said Wynantskill is a boundary line of a portion of the said land and premises of the said plaintiff, as the same are described in, and were conveyed by, the deed of conveyance of the said premises to the plaintiff from the executors of Jacob Warner, deceased, under a power of sale contained in the will of said Jacob. That said premises were so owned and occupied by said Jacob Warner, in his lifetime, that is to say, bounded on the north, in part as above, by the Wynantskill, as the same winds and turns, and in part by a division fence, which stands where the same has stood for thirty years and upwards, as plaintiff is informed and believes, and forms, with said Wynantskill, a part of the permanent northern boundary of said premises. And the plaintiff further says, that the defendant, well knowing the premises, did, at the times and in the manner stated in the first cause of action, set forth in this complaint, enter into and upon the said premises of the plaintiff, on the south side of said division fence and boundary line, and by his servants and agents, as aforesaid, did dig and construct a trench or channel, of the width and length above mentioned, along the whole of the south side of said fence, and distant therefrom varying from two to sixteen yards, and has drawn and diverted the waters of said stream, called Wynantskill, from its natural bed or channel, into said trench, through the lands of the plaintiff, for the purpose and with the intention, as he alleges, of permanently changing the present course of ever, arising out of "the same transaction or transactions connected with the same subject of action." (See Code, 167, sub. 1, also Pleadings, pp. 183-198. said stream, although, at the time aforesaid, this plaintiff did, in person, forbid the said defendant, and order him to refrain and desist from so doing. That in order the more effectually to accomplish his purpose, the said defendant is engaged in building a dam across said creek, for the purpose of obstructing the course of its current through its natural channel, and diverting said stream permanently through the artificial channel so dug by him or his agents through the lands of the plaintiff. That the said stream, called Wynantskill, is a constant stream of running water, emptying in the Hudson river, near the city of Troy, about four miles from the premises in question. That it is a rod wide or more in places, and is of sufficient volume and magnitude to be extensively employed as water power in moving machinery of mills, such as iron, cotton, grist and saw-mills, several of which are located on said stream, between the premises in question and the place where it empties into the Hudson river, and are exclusively supplied by its waters; and that in the spring time and rainy seasons, the volume of its waters is greatly augmented, and its current becomes rapid and powerful, often overflowing its banks and injuring the adjacent lands. That the portion of the said stream sought to be diverted and turned upon the lands of the plaintiff was (before defendant attempted to turn the same) in its natural bed or channel, and so has been for several years, and was before either the present plaintiff or the said Jacob Warner ever came into the possession or ownership of said premises; and the plaintiff alleges and charges the truth to be, that the commission and continuance of the said injury will cause great and irreparable damage to the freehold of the plaintiff, not only by destroying so much of the soil |