[318]*318By the Court,
Hogeboom, J.
The judge who heard this cause on the second trial appears to have arrived at the following conclusions :
1. That the plaintiffs are the owners of the seven-acre lot to the center of the creek on the north side thereof, and are entitled to all the rights and privileges of riparian proprietors, as they existed at the 'time of the conveyance to them, in 1852.
2. That the defendants are the owners of the one acre lot to the center of the creek on the south side thereof, with like rights and privileges.
3. That the diversion of the waters of the creek by the defendants in 1839, and their continuance of such diversion till the expiration of the lease in 1852, were justifiable and legal acts, and did not constitute an adverse possession nor an estoppel upon the owner of the land during that period of time; and that the defendants have acquired no right, by adverse possession, to divert the water from the bed of the creek since that time.
4. That the proprietors of the land on the north side of the creek have not lost any of their rights by non user of the water, and consequently have not lost the right to have the waters of the stream restored to the bed of the stream as they were accustomed to flow.
5. That although there was no adverse holding of the water right by the defendants, yet it was by the act of the defendants and with the consent and license of Defreest permanently separated from the land of the latter, and thereby ceased to be an appurtenance to the seven-acre lot, and did not pass to the plaintiffs by the conveyance of the Defreests to them in 1852.
6. That the division having taken place with the paroi consent and approbation of Defreest, and for causes operating and expected by him to operate to the benefit of his own property, and having with like consent and approbation been made at large expense and for a permanent object, and expensive improvements of a permanent character with like knowl[319]*319edge and approbation, having been made by the defendants in consequence of and upon the faith of such diversion, Defreest thereby gave consent and license to such diversion and expenditures, and he and his grantees are estopped from asking the aid of a court of equity to restore the waters to their natural bed, and are on the contrary liable to an action to prevent any interference with the defendants’ rights and improvements.
On the questions involved in the foregoing specifications, I think the general term on the hearing had previous to the second trial above mentioned, must be deemed to have held the following propositions:
1. That there was no sufficient evidence of any such consent or acquiescence on the part of the defendants or the plaintiffs, nor to the diversion of the water, or in or to the expenditures and improvements made by the defendants consequent thereon, as would bar their claim to have the waters restored to the bed of the stream; and no such knowledge or reason to suspect that they were intended to be permanent or perpetual, as would operate as an estoppel upon them.
2. That the plaintiffs having taken from the Befreests an absolute conveyance of the premises in 1852 without reservation, qualification, or limitation, such conveyance must be regarded as passing not only the title to the land and the water, but the water power and the rights and privileges which belonged to the grantors as riparian proprietors.
6 3. That the circumstances of the case justified a resort to an equitable forum to restrain the defendants from a further diversion of the water, and to compel its restoration to its natural bed or channel; and that the remedy was open to them notwithstanding the omission of the plaintiffs to appropriate the water power, hitherto, to manufacturing purposes; notwithstanding the inconsiderable amount of actual damage sustained; and notwithstanding the heavy expenditures to which the defendants might be subjected if enjoined from the further use of the diverted waters and compelled to restore them to their natural and accustomed channel.
[320]*320The principles thus enunciated must be regarded as the law of this case until overthrown by a superior tribunal. There is no occasion for their further consideration; and whatever respect we may entertain for the views of the learned judge who determined this case on the second hearing, they must be regarded as overruled, so far as they conflict with the deliberate adjudications of the general term.
Keeping in view these suggestions, let us consider what questions remain open for consideration; and whether in regard to any of them the evidence is sufficiently variant from what it was on the first trial, to justify the application of different rules from those which were heretofore laid down for the determination of the rights of the parties.
The points which the judge at the last hearing deemed open to discussion, and upon the strength of which he decided the case, appear to have been three. 1. He held that in consequence of the diversion in 1839 the water right became separated from the land and the estate therein, so that when the Defreests conveyed to the plaintiffs in 1852, although there was no adverse possession and no estoppel, and no loss of. the plaintiffs’ rights by non user, the conveyance did not pass to ■the plaintiffs all the rights which the defendants had, and especially did not pass the right to reclaim the water which had been thus diverted, nor the right to demand a restoration of it to its ancient channel. 2. That Defreest in effect consented to the diversion of the water—approved it—antici-* pated from the expected improvements incidental benefit to his own property; knew or ought to have known that they would be of a permanent character; substantially agreed that they should be made, and is (as well ás his grantees) estopped from now objecting to them, or from seeking the relief embraced in the complaint. 3. That the appropriate remedy for the injuries sustained or apprehended by the plaintiff is an action for damages, repeated as often as circumstances shall require, and not a suit in equity to prevent the further diver[321]*321sion of the waters, or to compel their restoration to the bed of tli e Wynant’s kill.
It will be seen that all of these questions were considered and disposed of in the opinion pronounced at general term.; and it only remains to determine whether additional evidence has been brought to bear upon the case which should alter the result.
1. The judge at special term seems to have based his opinion that the right to the water did not pass to the plaintiffs by the conveyance from the Defreests in 1852 upon two grounds. (1.) Upon the ground that the water may be considered as at that time held by the defendants under an adverse title and hence protected to the defendants, under that section of the revised statutes which declares a grant of lands void if they are at the time in the actual possession of a person claiming under an adverse title. (1 R. S. 739, § 47.) The deed was given on the 23d of July, 1852; the lease under which the defendants had held expired on the 1st of February, 1852; the defendants had six months thereafter to remove buildings and other improvements they had made upon the premises ; the defendants had made no open or notorious claim of adverse
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[318]*318By the Court,
Hogeboom, J.
The judge who heard this cause on the second trial appears to have arrived at the following conclusions :
1. That the plaintiffs are the owners of the seven-acre lot to the center of the creek on the north side thereof, and are entitled to all the rights and privileges of riparian proprietors, as they existed at the 'time of the conveyance to them, in 1852.
2. That the defendants are the owners of the one acre lot to the center of the creek on the south side thereof, with like rights and privileges.
3. That the diversion of the waters of the creek by the defendants in 1839, and their continuance of such diversion till the expiration of the lease in 1852, were justifiable and legal acts, and did not constitute an adverse possession nor an estoppel upon the owner of the land during that period of time; and that the defendants have acquired no right, by adverse possession, to divert the water from the bed of the creek since that time.
4. That the proprietors of the land on the north side of the creek have not lost any of their rights by non user of the water, and consequently have not lost the right to have the waters of the stream restored to the bed of the stream as they were accustomed to flow.
5. That although there was no adverse holding of the water right by the defendants, yet it was by the act of the defendants and with the consent and license of Defreest permanently separated from the land of the latter, and thereby ceased to be an appurtenance to the seven-acre lot, and did not pass to the plaintiffs by the conveyance of the Defreests to them in 1852.
6. That the division having taken place with the paroi consent and approbation of Defreest, and for causes operating and expected by him to operate to the benefit of his own property, and having with like consent and approbation been made at large expense and for a permanent object, and expensive improvements of a permanent character with like knowl[319]*319edge and approbation, having been made by the defendants in consequence of and upon the faith of such diversion, Defreest thereby gave consent and license to such diversion and expenditures, and he and his grantees are estopped from asking the aid of a court of equity to restore the waters to their natural bed, and are on the contrary liable to an action to prevent any interference with the defendants’ rights and improvements.
On the questions involved in the foregoing specifications, I think the general term on the hearing had previous to the second trial above mentioned, must be deemed to have held the following propositions:
1. That there was no sufficient evidence of any such consent or acquiescence on the part of the defendants or the plaintiffs, nor to the diversion of the water, or in or to the expenditures and improvements made by the defendants consequent thereon, as would bar their claim to have the waters restored to the bed of the stream; and no such knowledge or reason to suspect that they were intended to be permanent or perpetual, as would operate as an estoppel upon them.
2. That the plaintiffs having taken from the Befreests an absolute conveyance of the premises in 1852 without reservation, qualification, or limitation, such conveyance must be regarded as passing not only the title to the land and the water, but the water power and the rights and privileges which belonged to the grantors as riparian proprietors.
6 3. That the circumstances of the case justified a resort to an equitable forum to restrain the defendants from a further diversion of the water, and to compel its restoration to its natural bed or channel; and that the remedy was open to them notwithstanding the omission of the plaintiffs to appropriate the water power, hitherto, to manufacturing purposes; notwithstanding the inconsiderable amount of actual damage sustained; and notwithstanding the heavy expenditures to which the defendants might be subjected if enjoined from the further use of the diverted waters and compelled to restore them to their natural and accustomed channel.
[320]*320The principles thus enunciated must be regarded as the law of this case until overthrown by a superior tribunal. There is no occasion for their further consideration; and whatever respect we may entertain for the views of the learned judge who determined this case on the second hearing, they must be regarded as overruled, so far as they conflict with the deliberate adjudications of the general term.
Keeping in view these suggestions, let us consider what questions remain open for consideration; and whether in regard to any of them the evidence is sufficiently variant from what it was on the first trial, to justify the application of different rules from those which were heretofore laid down for the determination of the rights of the parties.
The points which the judge at the last hearing deemed open to discussion, and upon the strength of which he decided the case, appear to have been three. 1. He held that in consequence of the diversion in 1839 the water right became separated from the land and the estate therein, so that when the Defreests conveyed to the plaintiffs in 1852, although there was no adverse possession and no estoppel, and no loss of. the plaintiffs’ rights by non user, the conveyance did not pass to ■the plaintiffs all the rights which the defendants had, and especially did not pass the right to reclaim the water which had been thus diverted, nor the right to demand a restoration of it to its ancient channel. 2. That Defreest in effect consented to the diversion of the water—approved it—antici-* pated from the expected improvements incidental benefit to his own property; knew or ought to have known that they would be of a permanent character; substantially agreed that they should be made, and is (as well ás his grantees) estopped from now objecting to them, or from seeking the relief embraced in the complaint. 3. That the appropriate remedy for the injuries sustained or apprehended by the plaintiff is an action for damages, repeated as often as circumstances shall require, and not a suit in equity to prevent the further diver[321]*321sion of the waters, or to compel their restoration to the bed of tli e Wynant’s kill.
It will be seen that all of these questions were considered and disposed of in the opinion pronounced at general term.; and it only remains to determine whether additional evidence has been brought to bear upon the case which should alter the result.
1. The judge at special term seems to have based his opinion that the right to the water did not pass to the plaintiffs by the conveyance from the Defreests in 1852 upon two grounds. (1.) Upon the ground that the water may be considered as at that time held by the defendants under an adverse title and hence protected to the defendants, under that section of the revised statutes which declares a grant of lands void if they are at the time in the actual possession of a person claiming under an adverse title. (1 R. S. 739, § 47.) The deed was given on the 23d of July, 1852; the lease under which the defendants had held expired on the 1st of February, 1852; the defendants had six months thereafter to remove buildings and other improvements they had made upon the premises ; the defendants had made no open or notorious claim of adverse possession, and I think it was at least as reasonable to consider them under the evidence as tenants holding over or persons retaining possession under the title theretofore enjoyed, as to regard them as holding under an adverse title.
But conceding that the defendants might be considered as in the actual and adverse possession of the diverted water flowing over the defendants’ lands at the time of the delivery of the deed, it is not so much that body of water as the water subsequently flowing in' the stream above and entitled to flow down along the plaintiffs’ lands, for which the action was brought, and which the plaintiffs claimed they had a right to compel the defendants to restore. It was the water right— the water privilege—which the plaintiffs claimed passed by the conveyance, and I think the authorities justified such a [322]*322claim. (Mason v. Hill, 5 Barn. & Adol. 1. 2 Hilliard on Torts, 113, 114. Stevens v. Stevens, 11 Metc. 251.)
(2.) Upon the ground that the water right or privilege was a mere incident or appurtenance to the grant of the land and hy the act of Burden or the defendants became separated from the land itself, and therefore .would not pass by the conveyance. If this be sound, I do not see how any remedy for the defendants’ wrongful act of diversion could ever be practically asserted. It could not be by the plaintiffs, upon the hypothesis assumed; because the right did not pass by the deed. ITor by Defreest, for such a mere incident or appurtenance. must pass with the conveyance of the principal or become extinguished. A right of action to recover for damages already sustained prior to the,conveyance might well be deemed to remain in the grantor; (Baldwin v. Calkins, 10 Wend. 178;) but a? right of action or remedy for future encroachments upon ■ the jolaintiffs’ rights—for a neglect or refusal to restore the waters of the stream to their accustomed channel—must, I think, necessarily reside. in the grantee of the lands. It is this right—the right to have the waters flow in their natural bed—which passed by the conveyance, as a necessary and inseparable accompaniment or incident to the ownershijD of the adjoining and subjacent soil. This is as absolute and fixed a right arising out of the relations of a riparian proprietor to the waters of the stream flowing over and along his lands, as the right to the soil itself, and is never separated or disconnected from the land until the right itself becomes extinguished by twenty years’ adverse possession. It is not like the case of the garden (Doe ex dem Norton v. Webster, 12 Adol. & Ellis, 442) claimed to pass by the word “ appurtenances” as ah appurtenant to a house, cited by the learned judge at special term; for that was the case of an accidental or casual appurtenance to real estate, which might or might not, according to the. actual fact, be enjoyed with it; but this is the case of a natural, permanent and inseparable incident or accompaniment to the ownership of the soil, apd, [323]*323incapable of being divested by the act of any wrongdoer until twenty years' adverse enjoyment had ripened the original wrong into a legal right. In the case of the garden it was or was not an appurtenance, according to the fact and the intentions of the parties to the conveyance. In this case it was an inseparable incident of the ownership of the land—so declared by an inflexible rule of law—and requiring the most unquestionable evidence of the intentions of the parties to the contrary, to justify the inference that it was not designed to be conveyed. Again; I am not able to see that the learned judge has ill any way distinguished the case from what it was, in this particular, when it was before us on the previous occasion; and certainly it does not seem to be distinguished from it, by any new aspect of the evidence. The question was fully considered and decided in the opinion pronounced at general term, and the question must be regarded as settled, so far as this court is concerned, until our errors (if any) are corrected by a superior tribunal.
2. The justice at special term further held that the Defreests, and consequently the plaintiffs, though not barred at law, are estopped in equity from enforcing this water right by reason of their knowledge of and acquiescence in the large, expenditures and improvements which they saw the defendants originating in 1838 and 1839, and continuing afterwards. In this I think also the court below erred, (1.) I do not perceive any such preponderating evidence of acquiescence and consent as is inferred by the court, Doubtless Defreest saw the expenditures and improvements in process of being made and did not object to them. But that he gave his consent and agreement to them in any such unqualified manner as the court decide, is not, I think, a fair inference from the evidence, and is improbable in itself. Mr. Burden does not speak with great positiveness and strength upon the subject, and he is directly contradicted by Defreest. The legal presumption ought to be decidedly against the probability tjiat a proprietor of land would thus designedly [324]*324and gratuitously sacrifice a valuable property right; and I think the consent and agreement ought to be established by the clearest and most satisfactory evidence. I think this doctrine of equitable estoppel has been pushed quite far enough; and there is danger.if it be maintained with severity, that many a man without pretensions to legal erudition, or to any thing beyond plain practical sense, will find his property vanishing away before he is aware that it is at all in danger. (2.) Why was Defreest bound to remonstrate against the acts of Burden. Burden having an unexpired lease of thirteen or fourteen years had a perfect right to do what he did. He acted with a perfect knowledge of the nature and extent of his rights, and could lawfully make his expenditures and improvements on as liberal a scale • as he chose. . Defreest’s objections (if he had made any) would probably hav.e been treated by Burden as unfounded, impertinent and perhaps offensive. And it seems to me remarkable that the diversion of the water by the defendants should, be presumed to have been intended to be perpetual or permanent, or extending beyond the period of the lease, so as to require a protest on the part of the owner of the land, when the lessee had a perfect right to make them for a limited period, and would be chargeable with a palpable wrong if he designed them to be perpetual. It does not ¡ now occur to me that an estoppel can ever arise, founded upon an omission to object to an act, or declaration, when such act was perfectly justifiable or such declaration perfectly true. It is because a party stands silently by and sees an injurious and unwarrantable act done to his property, or hears a false and injurious declaration made affecting his rights, and does not protest against it, that he is regarded as tacitly acquiescing in the propriety of such act or the truth of such declaration, and shall not be permitted thereafter to question it, when such a course would work damage to an innocent party. I do not think the defendants are in a condition to claim the benefit of any such rule. (3.) It is not pretended that any [325]*325of the other co-tenants who confessedly had valuable interests in this property ever gave any consent or had any knowledge of the diversion of the water, or of the improvements or expenditures made by the defendants. And I do not think Abraham W. Defreest occupied such relation to them from the mere fact that he collected their rents, (without express authority,) and paid the same over to them, that they ought to be regarded as forfeiting their estate in these premises, on account of Ms individual acquiescence or consent. He was not their general agent; certainly not their agent to sell or to sacrifice these premises. The rights of tenants in common are distinct and not identical, and the acts or admissions of one are not, by virtue of that relation, the acts or admissions of the others. (Dan v. Brown, 4 Cowen, 483.) (4.) This question was also fully considered in the opinion pronounced at general term, on the former argument, and the facts are not essentially different. The former decision must therefore be regarded as conclusive.
3. The remark last made applies, I think, with full force to the plaintiffs’ title to the relief sought hy the complaint. It was adjudicated when the case was formerly before us.In all its essential features the case is similar if not absolutely identical, and in the light of such authority the views of the trial judge who differs in opinion with the law thus adjudged, are of no moment. But I will briefly examine some of the positions taken by him. (1.) It is said that equity will not grant an injunction if there is an ample remedy at law. I think the rule, according to the modern decisions, is subject to some qualification; but assuming its entire correctness, is it true that here is an ample remedy at law ? It is said an action at law lies to recover the damages. Perhaps this may be considered an action at law to recover the damages if it is not sustainable as an equity action; because in the demand of relief there is a distinct claim of damages to the amount of $100, sustained hy reason of the diversion of said stream, and under the rule laid down by [326]*326the court of' appeals in Marquat v. Marquat, (2 Kern, 336,) and Emery v. Pease, (20 N. Y. Rep. 62,) it is not-clear that the nonsuit ought not to have been denied on that ground. If an action at law lies to recover the damages* such actions may be indefinitely repeated, and each successive day may witness the commencement of a new one. Which is least burdensome to the defendants, a single action settling the entire right and affording comprehensive relief, or a succession of suits involving the defeated party in heavy costs ? So where actions at law are proper to recover damages for waste or trespass upon lands, it has been repeatedly held that courts will interfere by injunction to restrain acts of that character. (Livingston v. Livingston, 6 John. Ch. 497, Spear v. Cutler, 2 Code R. 100.)
It has been held in a case between these very parties that an injunction will issue to prevent the obstruction of water courses. (Corning v. Troy Iron and Nail Factory, 6 Now, Pr. Rep. 89.) Nor is it entirely clear to my mind" that an action at law for damages, if successful, would prevent the wrongful act of diversion from ripening into a perfect legal right. "It would establish, it is true, the fact of wrongful diversion, but it would still leave the act of diversion in full force, and would not restore the waters to their ancient channel, nor interrupt the adverse occupancy of the defendants. So an action or actions at law for continued trespasses might be successfully prosecuted against-a wrongdoer, who takes and holds possession of the land of another; but they would not interrupt the adverse possession, though decisive of the legal right. And it may he doubted whether the legal effect of the ad-terse possession would not still continue, and after the lapse of twenty years ripen into a perfect right. (2.) The question is discussed by the learned judge at special term whether special damages are not necessary to he averred in order to entitle a party to an injunction, hut on the whole concluded to be unnecessary. Such is, I think, the -course of decision in this state. But the complaint contains probably a sufii[327]*327cient averment of special damage (if that were necessary) when it states that by the unlawful acts of the defendants “the volume of water is diminished,” “its hydraulic power destroyed or impaired to such a degree as to render it utterly insufficient and worthless,” and “the plaintiffs’ premises injured and their value destroyed.” (3.) Again, it is said the plaintiffs’ title must be clear. It is clear, and upon the evidence unquestionable. (4.) Finally, it is said that where the damage to the defendant by the injunction will be very great and no good result from it to the plaintiffs, beyond establishing a title, án injuction will not issue. I think the rule is thus too broadly stated, but to prevent an injunction both these circumstances must concur; and here they do not concur. When the case was before presented we held that “the resort to an equitable forum seems consonant to the established practice in cases of this description, makes the relief ■ final and comprehensive, avoids a multiplicity of suits, and is equally effective with an action at law in preventing the adverse possession of the defendants from ripening into a hostile and perfect title.” (Corning v. The Troy Iron and Nail Factory, 34 Barb. 492, 493.) To those views we still adhere, and we regard them as sustained by principle and the weight of authority. This question is largely considered and ably presented by the late Justice Story, in Webb v. The Portland Manufacturing Co., (3 Sumner, 183.) The suit was in equity, seeking by injunction to prevent the defendant from diverting a water course. He holds that where there is a clear violation of a right, actual damage is not necessary to be shown in an action of this sort. ¡Nominal damages will at all events be awarded, and especially “whenever the act done is of such a nature as that by its repétition or continuance it may become the foundation or evidence of an adverse right.” He adds, “I know of no more fit case for the interposition of a court of equity, by way of an injunction, to restrain the defendant from such an injurious act. If there be a remedy for the plaintiffs at law, still that' rem[328]*328edy is inadequate to prevent and redress the mischief.” It is held as proper ground for the interference of a court of equity in cases of this description, that it will prevent a multiplicity of suits. (Angell on Water Courses, §§ 449, 450. Story’s Eq. Jur. § 901.) Again, it is said, “cases of a nature calling for the like remedial interposition of courts of equity are the obstruction of water courses, the diversion of streams from mills, &c.” (2 Story’s Eq. Jur. 241, notes 1, 2. § 928, p. 243.)
[Albany General Term,
December 1, 1862.
Hogeboom Peckhamn and Miller, Justices.]
I do not deem it necessary to consider the question of the trivial damages hitherto sustained by the plaintiffs, the expensive improvements made by the defendants, and the large expenditures which will be necessary to restore the diverted waters to their ancient channel, in case the plaintiffs’ action is sustained. They were all fully considered in the former decision, (Corning v. Troy Iron and Nail Factory, 34 Barb. 492,) and need not be here repeated. I think the expenditures necessary to restore the waters to the bed of the stream will not be so great as apprehended, and the defendants can be protected from unnecessary damage by allowing them one year, as before, to effect the restoration of the water, and adapt their works to the new condition of things.
It would have been better, in my opinion, if the parties, after the former adjudication, had put the case in a shape to have our decision reviewed by the court of appeals without further litigation and expense > but as they have not chosen to do so they must abide the issue.
In my opinion the judgment of the circuit and special term should be reversed and a new trial granted, with costs to abide the event.