The dam which the plaintiff stated in the paper qf September 9, 1898, he would give the defendant the privilege to erect upon his property was a bank or -levee at the upper end of the reservoir which the defendant desired to fill by the erection, of the dam across the river at the lower end of the reservoir, and the purpose of such bank or levee was clearly to .prevent the waters when raised by- the dam across the river from flowing back and upon the premises above the reservoir, and the purpose of the defendant in procuring the plaintiff’s assent to the paper of September 9, 1898-, was to get the right to flood two and seven one-hundredths acres of plaintiff’s land as a portion .of its reservoir.
Without the instrument the defendant would have had no right by the erection of its dam across the river to set the water back and flood any of the plaintiff’s land, and if it did so it would clearly be liable for all damages to plaintiff’s land caused thereby. By the ■ instrument the right is given to defendant to floocjl a specific amount of plaintiff’s land. The defendant is given no right by it to flood any land other than the two and seven ofie-hundredths acres therein mentioned. It has in fact flooded nearly twice as much of plaintiff’s land as it jmrchased the right to flood and has by such flooding not only caused damages thereto but also to his fertilizers, his factory and his machinery.
. The theory of the defendant, as near as I can gather it, is that the instrument, operates as a grant and when the plaintiff gave it to the defendant and accepted the consideration therefor the latter had the right to flow the water back to the breakwater or dam to be erected on plaintiff’s land, an cl that any percolation of the water through or under such breakwater or dam on plaintiff’s lands above was one of the necessary and natural consequences or incidents of the use to which the privilege granted was to be put when the reservoir was filled with water and was'appurtenant to the privilege granted.
We need not determine whether the execution and delivery of this paper by the plaintiff to the defendant, and the subsequent *349payment to the plaintiff of the sum of seventy-five dollars therein mentioned were effective as a grant of the rights or privileges mentioned therein. We may assume for the purposes of this case that they were so effective. Yet it is clear from an examination of the paper that the only privilege given in it to the defendant by the the plaintiff is to erect a dam on the latter’s land “ and flood the land below the dam.” No right was purchased or given to flood any lands above the. dam. The dam was clearly intended as a breakwater to prevent such flooding above it and to permit the defendant to accumulate water in the reservoir below, without damaging plaintiff’s lands and property above. The instrument gives nothing by implication. The privilege given is not expressed to be given with the appurtenances. The instrument does not contain the word “ appurtenances,” or any thing of a kindred meaning. To hold that by virtue of this instrument the defendant has the right to flood the plaintiff’s premises above this dam is equivalent to a decision that by virtue of the instrument alone the defendant has procured an easement to flood plaintiff’s lands above the dam as an appurtenant, or as an incident to its right to flood his lands below it. We do not think the instrument is susceptible of such , a construction, nor that such an easement can in any sense be regarded as an appurtenant or incident of such a right. The fact that the instrument contains an express mention of the precise amount of land that the plaintiff is willing to permit to be flooded below the dam, and also that the sketch referred to defines its precise location, fairly implies the exception by him of his lands and factory above the dam.
The sketch referred to in the instrument gives no specifications as to the character of the dam or the manner of its proposed construction. It simply shows its location by a line drawn thereon. There was, however, some talk between the president of the defendant and the plaintiff prior to the execution of the instrument that the dam was to be constructed from Wo to two and one-half feet above the water and was to be eight feet wide on top and sloping in . either direction to the ground and it appears that the bank was constructed substantially of that size, but other than this there, is nothing in the record showing that the parties agreed upon any plans or specifications for the construction of the dam. The purpose of the dam being as we have stated it was incumbent upon the *350defendant, if it desired to' accumulate water in its reservoir above the level of plaintiff’s lands above, to so construct the dam authorized by the instrument that, when the reservoir was filled above that level,.only so much of plaintiff’s land as it was thereby given the privilege of flooding should be covered with water. .
The court was right, therefore, in holding that the' defendant’s act in allowing the water to pass from its reservoir ‘ onto tile plaintiff’s lands above the dam was unlawful and á continuing trespass upon the plaintiff’s property.
A point is'made that the plaintiff had an adequate remedy at law and that, therefore, he had no right to seek the aid of a court of equity. But it has been held by numerous authorities that, where a trespass upon land is continuous, the owner has the right to invoke the power of a court of equity to restrain such trespass, and thus prevent a multiplicity of • suits. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 457; Garvey v. Long Island R. R. Co., 159 id. 332.)
The judgment should be affirmed, with costs.
t
All concurred except Smith, J., dissenting in opinion in which Parker, P. J., concurred.