On this appeal we are obliged to take the findings as they come to us affirmed by the Appellate Division, for it is on these findings that the court has determined that an injunction should issue. The facts as stated in these findings are the following:
The Niagara river is a navigable fresh water stream connecting Lake Erie with Lake Ontario, the current of which flows in a northerly direction from Lake Erie to Lake Ontario at a velocity from four to six miles per hour. (A good brisk walk for a man.)
Since June 21, 1916, the plaintiff has been and now is the owner in fee of all that portion of Squaw Island here in question. On the 21st of April, 1926, the People of the State of New York by letters patent granted to the plaintiff certain lands under the waters of Niagara river mentioned and described in the complaint in this action; that since acquiring title to Squaw Island the plaintiff, through its licensee, dredged sand and gravel in the Niagara river in the vicinity of Squaw Island, the operation of which was conducted through scows and boats equipped with powerful hydraulic suction pumps, and caused portions of the uplands of Squaw Island to slide and fall into the water by reason of the removal of support thereof. This operation was conducted to such an extent that the original shore line of said island was changed and a large bay or indentation was formed on the southwesterly end thereof. The digging itself was done by the Squaw Island Sand and Gravel Corporation, a licensee of the plaintiff, which had a license from the United States government for certain areas in the southerly end of the island. This company never exercised any of the rights under said permit, which expired December 31, 1929. *Page 132
Under date of April 27, 1926, the United States, through its district engineer in the city of Buffalo, served notice upon various persons, firms and corporations that any dredging operations in progress in the Niagara river must cease on or before May 15, 1926, as they were in violation of section 10 of the River and Harbor Act, approved March 3, 1899. (30 U.S. Stat. pp. 1121, 1151.)
I quote the 14th finding in full:
"14. That in addition to the dredging of sand and gravel in and around Squaw Island, the plaintiff through its licensee, the Squaw Island Sand and Gravel Corporation, excavated a channel between the shore line of said island and the interior thereof, and that by the dredging of sand and gravel from the lands under water, the dredging away of the shore line of Squaw Island and the excavation of a channel toward the interior of the said island by the plaintiff in and along the westerly and southerly portion of said island, the said plaintiff created a bay therein which acted as a settling basin drawing sewage and other matter from Niagara River upon the sand and gravel existing on lands under the waters of said bay."
That by chapter 341 of the Laws of 1882 the city of Buffalo was granted authority to construct the Swan street trunk sewer in the city of Buffalo and to outlet said sewer into the Niagara river north of the waterworks and south of Albany street. The sewer was built and has been maintained and used by the defendant, pursuant to such act, since about the year 1883.
The following findings I quote in full:
"17. That for a long time prior to the plaintiff's ownership of Squaw Island, other agencies besides the defendant, the City of Buffalo, polluted and are at the present time polluting the waters of Niagara River before they reach the lands of plaintiff."
"19. That as the plaintiff through its licensee dredged sand and gravel from the lands under water east of the *Page 133 Harbor Line and east of the bulkhead line at Squaw Island, sewage and other material were drawn upon the lands of the plaintiff by the suction produced in such dredging.
"20. That the Swan Street Trunk Sewer of the City of Buffalo at all times since 1883 carried and now carries not only the dry water flow or sanitary sewage so-called of the district served, but also the storm water drainage of said district."
"22. That there was no pollution of the sand and gravel upon the lands of said plaintiff from the time the defendant commenced to sewer into Niagara River until the creation of the bay and channel by the plaintiff, or its licensee, on the southwesterly side of Squaw Island."
The findings further state that the method adopted by the plaintiff and its assignee in producing sand and gravel resulted in making a portion of its lands a part of the bed of the Niagara river.
Again I quote:
"25. That the method adopted by the plaintiff, and its licensees, in such removal, not only subjected its lands to the effect of any pollution that there might be of the waters of Niagara River, but also interfered with the current of the stream by causing the collection of water in the artificial bay at the southern extremity of the Island, and reducing the flow of the water, generally, along the west shore of the Island.
"26. That but for the plaintiff's own acts, no sewage from the Swan Street sewer, either as originally constructed, or as reconstructed by the City, including the building of the Bird Island Pier, would have been deposited upon the lands of the plaintiff, but rather, by reason of the swift current of the river, would have been carried past the lands of the plaintiff without damage thereto."
The trial judge dismissed the complaint, finding as a question of law that the defendant has not invaded or injured any property of the plaintiff. This conclusion of *Page 134 law was reversed by the Appellate Division which, however, affirmed all the findings of fact just stated. The Appellate Division on these facts gave judgment remitting the case to the Special Term, (1) for the purpose of determining the amount of damages, if any, to which the plaintiff is entitled; (2) for the issuance of an injunction restraining the city of Buffalo from disposing of its sewage into the Niagara river in such a manner as will invade the legal rights of the plaintiff as a lower riparian owner; (3) suspending the injunction until the Special Term shall determine adequate means to avoid the pollution of which the plaintiff complains, and a reasonable time to put it into effect; (4) the date of the injunction to be fixed accordingly, and upon such further terms as the court in its discretion deems best to preserve the legal rights of the parties hereto.
The question comes down to this: Is this a case where the plaintiff is entitled to an injunction or any equitable relief? Can it compel the city to change its sewer system to prevent damage which the plaintiff has caused itself in the past and which may never exist again? Here is a large drainage sewer serving a large part of the city of Buffalo. We are told that the Niagara river has a current which flows at the velocity of from four to six miles an hour. From 1883 to 1925, a period of forty-two years, the sewer was in operation without causing any damage whatever to the plaintiff's land or its sand. Thereafter the plaintiff changed the course and current of the river, created a large bay, thus preventing its natural flow. By this means the plaintiff drew upon its land, or the land under the water, the sewage which no longer could be carried off by the flow of the river and which remained to do damage, solely by reason of the plaintiff's interference.
This is not a case where a riparian owner is complaining because the water has been polluted, as it flowed by his place in its usual and natural course; neither is it a *Page 135 case where a riparian owner has been damaged because of the usual and ordinary use made of a flowing stream, such as for mill purposes, irrigation or the watering of cattle or for navigation. The plaintiff has changed the course of the river; it has stopped its natural flow, has slowed down the current, has created bays by digging out its upland, and complains against the city because these changes, created by it for commercial purposes, failed to carry off the sewage and damaged its sand or land under water. Is it for such a purpose that equity should require the city of Buffalo to change its extensive sewerage system? I think not.
The United States government must be consulted before the natural flow of navigable waters can be changed and the courses of waterways interfered with. In this case the plaintiff's licensee obtained a license from the government. Later the United States government notified property owners along the river that dredging operations therein must cease. I mention these matters simply to show that riparian rights are more or less limited to the natural and ordinary flow of navigable rivers and uses which are customarily made of them; that riparian rights do not necessarily include the right to change the course of rivers and the depth of river bottoms.
The city of Buffalo should not be obliged to devise and submit plans to the courts modifying its sewer system so as to prevent any future damage to the plaintiff's sand in its bays. The plaintiff may never be able to dredge there again without permission from the United States government. Shall the city undertake extensive sewer alterations in view of such contingencies or doubtful expectancies? The Special Term has been ordered to determine an adequate means to avoid the pollution ofwhich the plaintiff complains and an injunction is to issue after the city has had a reasonable time to put the means or plan into effect.
We all agree, I think, that no such injunction should issue. *Page 136
Suggestion, however, is made by Judge FINCH that the Appellate Division judgment should be modified by providing that the injunction issue should the city fail to pay the plaintiff's damage as determined by the Special Term. This might be reasonable procedure if we were convinced that the plaintiff has suffered any damage for which the city of Buffalo is responsible. The facts as detailed show, in my judgment, that the plaintiff has suffered no damage through the acts of the city for which it should pay. The authority relied upon, Huffmire v. City ofBrooklyn (162 N.Y. 584), is not in point. Huffmire was authorized by an act of the Legislature to plant his oysters in well-defined, licensed oyster beds. He had placed his property, personal property, on such a bed. The city of Brooklyn collected coal tar in its sewer and dumped or threw it onto these oysters. Here was a direct act of damage which was unnecessary and unjustified, as the city of Brooklyn could have built its sewer elsewhere.
The city of Buffalo has not collected sewage and discharged it upon the land of the plaintiff. For forty years the Niagara river carried off the city's sewage without damage to anybody. For the purpose of selling its sand the plaintiff dug away the shore of the Niagara river, virtually stopped or retarded its flow, dug out a bay, drawing into it from the river the sewage of which it complains. We have the fact clearly stated in the fourteenth finding, that the plaintiff, by dredging away the shore line of Squaw Island, and by the excavation of a channel toward the interior, created a bay therein which acted as a settling basin, drawing sewage and other matter from the Niagara river upon the sand and gravel existing on lands under the waters of said bay. This is not a riparian right which has been destroyed or injured by the city of Buffalo. The plaintiff bases its cause of action upon injury to its riparian rights. What were its riparian rights? So far it has been assumed in this case, without question, that the plaintiff was entitled to a *Page 137 flow of clear water, no matter what it did to the shore line or to the Niagara river. If the plaintiff, under the conditions which it created, has no riparian rights, it has suffered no damage.
Judge VANN, in Strobel v. Kerr Salt Co. (164 N.Y. 303,320), has defined these rights so clearly that I quote his words in full: A riparian owner is entitled to a reasonable use of the water flowing by his premises in a natural stream, as an incident to his ownership of the soil, and to have it transmitted to him without sensible alteration in quality or unreasonable diminution in quantity. While he does not own the running water, he has the right to a reasonable use of it as it passes by his land. As all other owners upon the same stream have the same right, the right of no one is absolute, but is qualified by the right of the others to have the stream substantially preserved in its natural size, flow and purity, and to protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. The use by each must, therefore, be consistent with the rights of the others, and the maxim of sic utere tuo observed by all. The rule of the ancient common law is still in force; aqua currit et debet currere, utcurrere solebat. Consumption by watering cattle, temporary detention by dams in order to run machinery, irrigation when not out of proportion to the size of the stream, and some other familiar uses, although in fact a diversion of the water involving some loss, are not regarded as an unlawful diversion, but are allowed as a necessary incident to the use in order to effect the highest average benefit to all the riparian owners. As the enjoyment of each must be according to his opportunity and the upper owner has the first chance, the lower owners must submit to such loss as is caused by reasonable use. Surrounding circumstances, such as the size and velocity of the stream, the usage of the country, the extent of the injury, convenience in doing business and the indispensable public necessity of cities and villages for drainage, are also taken into consideration, so that a use which, under certain *Page 138 circumstances, is held reasonable, under different circumstances would be held unreasonable. It is also material, sometimes, to ascertain which party first erected his works and began to appropriate the water." This was followed in Pierson v.Speyer (178 N.Y. 270) and City of New York v. Blum (208 N.Y. 237, 242), where Judge MILLER wrote regarding riparian owners: "Each is entitled to a reasonable use of the water flowing by his premises and each is entitled to have the streampreserved in its natural size, flow and purity."
Riparian rights are such as grow out of the ownership of banks of streams and not of the ownership of the bed of the stream. (Rome Railway Light Co. v. Loeb, 141 Ga. 202.)
Gould on The Law of Waters ([3d ed.] § 148) says: "Riparian rights. * * * The distinction between tide waters and fresh, or between public and private waters, is not necessarily a material consideration in determining questions relating to riparian rights, since riparian rights proper depend upon the ownership of land contiguous to the water, and are the same whether the proprietor of such lands owns the soil under the water or not."
Again, in section 92, the author states: "The owners of lands bordering upon navigable waters may lawfully throw sewage and other refuse matter into them, provided they do not create a nuisance to others; for it is a natural office of the sea and of all running waters to carry off and dissipate, by their perpetual motion and currents, the impurities and offscourings of the land."
The plaintiff's riparian rights were not enlarged by reason of its property being an island instead of the main land. It could make reasonable use of the Niagara river for purposes stated in these opinions or reasonable use for any other purpose connected with the use of its main land, but it had no right to divert the stream, permanently retard the flow of the water, or change its current and then complain of the results. As before stated, for forty-two years the current of the Niagara river carried off the drainage of the city of Buffalo without injury to the *Page 139 plaintiff or anybody else. The plaintiff dug away the bank or shore of the river, created bays and canals, creating in the words of the finding, "a settling basin drawing sewage and other matter from Niagara River upon the sand and gravel." In other words, the flow of the river at this point was retarded and its natural current interfered with, not for temporary use, but permanently. These excavations and changes in the watercourse, under all the circumstances stated here, were not the reasonable use which a riparian owner can make of a navigable river.
The Appellate Division has certified six questions, and in my opinion they should be answered in the following order:
"1. Is the judgment entered by the Appellate Division sustained by evidence presented at the trial?" Answer: No.
"2. Is plaintiff's right to recover barred by its own acts or those of its licensee?" Answer: Yes.
"3. Does chapter 341 of the laws of 1882 constitute a complete defense to this action?" Answer: On the findings here made, yes.
"4. Do the actions of the United States government in respect to the modification and withdrawal of dredging permits in and about Squaw Island bar a recovery of damages?" Answer: No.
"5. Do the actions of the United States government in respect to the modification and withdrawal of dredging permits in and about Squaw Island bar the granting of an injunction against the defendant?" Answer: No.
"6. Did the Appellate Division err as matter of law in granting the judgment which it did?" Answer: Yes.
The judgment of the Appellate Division should be reversed, and that of the Trial Term affirmed, with costs in all courts.
O'BRIEN, HUBBS and LOUGHRAN, JJ., concur with FINCH, J.; CRANE, Ch. J., dissents in opinion; LEHMAN, J., dissents.
Ordered accordingly. *Page 140