The plaintiff has a mill upon a stream running out of Rockland lake and a dam by which he provides the water for the purposes of his mill. Nearly or quite forty years ago there was a pond above the plaintiff’s pond. After being disused for many years the defendant Hedges rebuilt the old dam and leased the pond as an *237ice pond. It has- become necessary once since the lease for the lessee to repair the dam and for that purpose the water was let off and reponded again after the dam was repaired. It then became necessary to clean out the pond so as to have good ice. The pond was drawn off and cleaned out and then refilled. In repairing the dam and cleaning the pond, water escaped faster than plaintiff could use it, and in refilling the pond the plaintiff had no water to use.
The plaintiff seems to be without any remedy. The rule is well settled that a dam may be constructed by a riparian owner and the water ponded so as to propel machinery for which the stream is adequate. The proprietor below suffers damage - while the water is filling up in the pond, but he has no remedy. (Bullard v. Saratoga Victory Mfg. Co., 77 N. Y., 525.) The same rule prevails in reference to a repair of the dam. If a dam may be built it may be repaired. The use in this case is not to propel machinery but for ice. The use is not prescribed by law except that it must be lawful.
It is generally a question of fact. The riparian owner may have a fish pond or one for ornament only. He may divert the waters to domestic purposes. There is no case holding that ice may be removed, but it cannot be doubted. The ice belongs to the riparian owner. (Dodge v. Berry, 26 Hun, 246.) The withdrawing ice from the streams is an insignificant consideration in respect to the water which will be restored to the stream when it melts.' It is so found by the judge as a question of fact in this case.
The right to erect a dam for ice must rest upon the same principle as the right to erect one for purposes of pleasure or for a manufactory.
The repair of the dam and the cleaning out the pond were both acts necessary for a proper use of the stream by the defendant and the judgment should be affirmed, with costs.
Dykman, J., concurred.