(dissenting):
It is said that every proprietor of lands on the banks of a stream has an equal right to the use of the water flowing through the stream without diminution or alteration. But this rule is qualified *238by another, that each riparian owner has a right to a reasonable use ■of the water, and this, though such use inay work some detriment to other riparian owners. (Bullard v. Saratoga Victory Mfg. Co., 11 N. Y., 525.) From a literal adherence to the former rule, it would result that instead of every owner having an equal use, practically no owner would have any use. Some diminution of quantity is caused by using the water for watering . cattle and other faim purposes. Much loss must also be occasioned by ponding the water and exposing it to evaporation. Yet such uses are held to be reasonable.
The diminution in the size of the stream by cutting ice must be slight. We think the cutting and gathering ice, if not carried to the extent of interfering with the beneficial enjoyment of the stream by other riparian owners, a reasonable use, and in this respect' concur in the opinion delivered by Westbrook, J., in Myer v. Whitaker (55 How., 376). Here though the quantity of ice gathered is large, the trial judge has found that its removal worked the plaintiff no injury, as the water resulting from its thawing would have passed over the plaintiff’s dam in the spring freshets, when the plaintiff’s mill was not large enough to use the water furnished by the stream.
As the defendant Hedges, had a right to construct a dam and pond on her premises for mill purposes, suitable to the size of the stream, we do not see why she could not have made a pond for any other purpose, provided she did not exceed the limits prescribed.
The trial court has found that the construction of the pond and •dam has not intefered with the supply of water for the plaintiff’s mill. We think therefore the plaintiff was not entitled to a removal ■of the dam, nor to have the cutting of ice enjoined.
But it seems that for the purpose of getting clear ice the defendant Bean, the lessee, drained the pond entirely off at times, and then held the water back long enough to refill it. That thus during some considerable period the plaintiff’s mill was entirely deprived ■of water and compelled to stop. Now, while we think that the defendants could pond the stream for the purposes of ice, to the same extent they would be entitled to for mill purposes, it is clear then they can have no greater right to interfere with the flow of the stream for the former purposes, than for the latter.
*239One having erected a dam may detain the water long enough to fill the pond behind it, permitting .then the stream to resume its natural flow.
But he cannot use the pond to store water and at his option to let it flow away. (Clinton v. Myers, 46 N. Y., 511.) This use of the pond was unlawful. The trial court found that by it the plaintiff’s mill was for a period made idle.
For this the plaintiff was entitled to recover damages, and he was entitled to an injunction restraining further use of the pond in that manner.
It follows that the complaint was improperly dismissed against the defendant Bean. As for the defendant Hedges, she had leased the property, and is not shown to have been connected with its improper use.
The judgment to her was therefore right and should be affirmed, with costs.
The judgment as to defendant Bean should be reversed and' a new trial granted, costs to abide event.
Judgment dismissing complaint without costs, affirmed with costs.