Hnder the findings made by the court below the question presented by the appeal is one of law only. The defendant keeps and maintains a pond which is a common nuisance and specially in jurious to the plaintiff. There would be no doubt as to the case being within the cognizance of a court of equity, but the plaintiff owns the fee of the pond, subject to the right of ponding, expressly by reservation in his deed. We do not think that this dormant estate of ponding carries with it the right to create or maintain a nuisance. When the deed was taken no doubt the pond was pure and inoffensive. It has now become so filled with the wash of fields and ditches therefrom as to be dangerous to health and destructive of all enjoyment of life to the inhabitants living in the vicinity. Such a state of things could not be anticipated when the deed was taken. The subject estate is not therefore concluded by the pond as it is found to be. There is no estoppel in the fact that the plaintiff owned stock or had an interest in the company which created or which maintained the pond. There is no inconsistency even in being a stockholder in a corporation and maintaining an action against it for creating a nuisance.
The plaintiff is entitled to judgment, without costs.
Pratt, J., concurred ; Dykman, J., not sitting.Judgment reversed, and judgment for plaintiff upon findings.