The cause seems to have been tried before the referee as though the rights of the plaintiffs, to some extent, depended upon prescription by user. We do not see, from the evidence, that any such question arises on the plaintiffs’ part, in the action. Their factory, as we understand the ease, is upon their own land, through which the stream of water in question naturally flows. This gives them the right to use the water there in any manner they may see fit, so that they do not interfere with the rights of other owners to the use of the water, on the stream below, or above. This right to use the water is incident to the ownership of the land through *33which the stream naturally flows, and pertains alike to every owner of the soil. And even if an owner has had the uninterrupted flow and use of a stream on his own land for twenty years or more, he does not thereby acquire such a prescriptive right to such uninterrupted flow and use that he can prevent an owner of land on the stream above from using and enjoying the water upon his land in any reasonable and proper manner. An owner above may acquire a right by prescription, to detain and obstruct the flow of water, to an accustomed extent, and for a fixed period, against the owners below; but the defendant does not show any such right against the plaintiffs, and no such question, we think, properly belongs to the case. The main question, upon the merits, appears to be whether the defendant, in the exercise of his right to use the water upon his own lands, has been guilty of doing it in such a manner as to violate the rights of the plaintiffs, and deprive them of the lawful use of the same water, in whole or in part, for their factory below. The right to water flowing through land, is the right of use only; and this is a right belonging to each owner, in common with every other owner of the land through which the stream naturally flows. So one owner can divert it from the land of another, or obstruct and detain it to the injury of such other, without rendering himself liable in an action to recover damages, or to obtain such other relief or remedy as the particular case may call for. Kent, in his Gommenta-. vies, says : “All that the law requires of the party, by or over whose land a stream passes, is that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish, or affect, the application of the water, by the proprietors below on the stream. He must not shut the gates of his dams and detain the water unreasonably, or let it off in unusual quantities, to the annoyance of his neighbor.” (3 Kent’s Com. 440. See *34also Merritt v. Brinkerhoff, 17 John. 306.) This is undoubtedly the true rule; and the rule of the civil law is, in this respect, substantially the same. Upon the facts found by the referee, the detention of the water by the defendant .has been clearly unreasonable and unlawful, as against the plaintiffs. He had been in the habit of keeping his gates closed through several of the working hours of each day, and for that time depriving the plaintiffs wholly of the use of the water for their factory, and then letting it off in such unusual quantity that the plaintiffs could only use a small portion of it while passing, when, without such detention, they would have been able to run their factory constantly, and without interruption. This was clearly unjustifiable, and gave the plaintiffs a good right of action, at least to recover damages occasioned by the detention. It is said, in behalf of the defendant, that he has a right to the beneficial use of the water upon his own land, and that he cannot use it with any advantage or profit to himself, without detaining it as he has heretofore done, and in the manner complained of. But the plain answer to this is, that if this manner of using is substantially prejudicial to the rights of others, and sensibly diminishes the value of their rights to the common use, he must forego the use of it in that manner, and use it in some other way, though such other way may be less profitable. The true test is, whether the use complained of is really and sensibly injurious to the common rights of other proprietors. (Tyler v. Wilkinson, 4 Mason, 401. Angell on Water Courses, §§ 115-118.)
' There can be no doubt, we think, upon the evidence and the facts found by the referee, that this is a proper case for the preventive remedy by perpetual .injunction. This has been the rule in cases of this description, certainly ever since the case of Robinson v. Lord Byron, (1 Bro. C. R. 588; 2 Story's Bq. § 927; Angell on Water Courses, § 445; Gardner v. Village of Newburgh, 2 John. Ch. 162; Corning *35v. The Troy Iron and Nail Factory, 40 N. Y. 191.) Many other decisions might be cited in our own courts in this State, to the same effect. The last case cited holds that since the Code it is unnecessary, as a preliminary to this species of relief, to settle the right by an action at law, even where the right is doubtful. The only difficulty in affording the remedy in a case of this kind is, in fixing the limit of the detention by the defendant in future, by decree. In this respect, however, I do not see but the referee has fixed it with as much exactness and particularity as the case admits of. The judgment ordered allows the defendant to use and detain the water for,his own use, as it was used and detained, by the owners of the same premises, prior to the 15th of October, 1866. Of this the plaintiffs do not complain; and I think we should not disturb the judgment on this ground.
The reversal is placed solely upon the ground of the admission of improper evidence on the question of damages. The plaintiffs were allowed to prove, against the defendant’s objection, how many yards less of cloth they made in consequence of the detention of the water, than they could have made had the water not been detained as it was; and what the profit on each yard manufactured and sold was, at the price at which they sold what they did make. This was clearly incompetent for the purpose of ascertaining the amount of damages sustained by the plaintiffs. It was wholly speculative and conjectural. It was mere matter of opinion whether the additional amount could or would have been manufactured had the water not been obstructed, and, if such additional quantity could or would certainly have been manufactured, whether it would or could have been sold at the same price. Speculative profits are not recoverable in an action for damages. (Griffin v. Colver, 16 N. Y. 489.) The true measure of damages in a case like this, is the value of the use of the *36water to the plaintiffs, situated as they were, during the time they were wrongfully deprived of it.
[Fourth Department General Term, at Buffalo, June 6, 1870.The judgment, for this error, must be reversed, and a new trial ordered, with costs to abide the event.
blew trial granted.
Taloott, J., did not sit in the case, having been, previously to his election, consulted as counsel.
Mullin P. J., and Johnson, Justice.]