I dissent. The plaintiffs and the defendant are adjoining riparian owners on the Ohateaugay river, Franklin county. The plaintiffs are upstream from the defendant and own quite a large amount of land along and near to the river and along and on each side of a chasm of said river. Where the chasm stops and the land widens out into level lands the plaintiffs also own several tracts of land.
The defendant upon its premises has erected a dam so high that it floods the water of the Ohateaugay river hack upon the lands of the plaintiffs 420 feet. At the point of division on the river between the lands of plaintiffs and defendant the water is raised up 8 feet high in the river by the defendant’s dam. This runs down, of course, up the stream until it comes down to nothing, 420 feet back from the line between the parties.
Plaintiffs brought an action for damages and for an injunction restraining the- defendant from maintaining its dam at this height. The plaintiffs succeeded at the Trial Term and procured a judgment for six cents damages and for an injunction restraining the continuance of said dam at the height at which it was erected, and the defendant was directed to take down its dam to a height at which it would not set the water back upon the premises of the plaintiffs within ten months from the date of the decree or judgment entered in this action. (See opinion of the trial court.)
I think the judgment is right and should be affirmed.
One of the plaintiffs testifies that the reason the plaintiffs came to buy this property, which was purchased after defendant’s dam was erected, was that “We were looking for a water-power site to build a pulp mill and tissue mill.” The plaintiffs do not have to apologize to the defendant nor to the court for purchasing lands that did not belong to the defendant. There is nothing in the evidence, taking the entire evidence together, in my opinion, that justifies the assigning of *308any ulterior motives to the plaintiffs in the purchase of this land. If the defendant keeps its water on its own land the plaintiffs cannot harm it, no matter what plaintiffs’ motives might be alleged to be. Nor is there anything inequitable in-plaintiffs’ position here. They allege and prove ownership and trespass by defendant and simply ask to have defendant removed from their property.
The defendant is committing a continuing trespass on plaintiffs’ lands. This court is contemplating sanctioning and approving that trespass. This would be taking plaintiffs’ lands for a private purpose, which is unlawful. Private lands may not be taken even for a public purpose without just compensation, but here it is proposed to give to defendant the use of plaintiffs’ lands without compensation. Manifestly that is illegal.
I think the- plaintiffs do not have to await the convenience of the defendant in removing its dam until the plaintiffs are ready to build their mill and take the chances of the law’s delays in obtaining an injunction then or wait until they have a chance to sell their property and then perhaps lose a purchaser in the- delay of obtaining possession of their own property. I think they are entitled to possession now, as was found by the trial court.
This court is already committed to the proposition that where a dam is maintained which floods in times of high water only, back upon property of adjacent upstream owners, an injunction will issue to restrain such unlawful use of the lower riparian owner’s lands. (See unanimous opinion of this court in Brown v. Ontario Talc Company, 81 App. Div. 273.) That case was not so strong for the plaintiff as is this case, as plaintiff’s lands there were flooded only in time of freshet, while here plaintiffs’ lands are flooded every time defendant’s dam is full.
The judgment appealed from should be affirmed, with costs and disbursements to the plaintiffs.
Judgment modified as per opinion and as modified affirmed, without costs to either party.