SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
April 24, 1969
FRANK GRATHWOHL ET AL., APPELLANTS,
HIWAY WONDERLAND, INC. ET AL., RESPONDENTS
Appeal by the plaintiffs from a judgment of the Supreme Court entered March 31, 1965 in Greene County, upon a decision of the court at a Trial Term without a jury.
Herlihy, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum by Herlihy, J.
The plaintiffs are upper riparian owners whose property adjoins that of the defendants, lower riparian owners. The plaintiffs seek injunctive relief against the defendants so as to prevent the flooding of their land by a dam constructed by the defendants. The court found "that the weight of the evidence adduced sustains plaintiffs' position that defendants' dam has and still does flood plaintiffs' land at certain times of the year" and "that the evidence adduced in respect to the flooding of plaintiffs' land by reason of the dam on defendants' property justifies the granting of an injunction enjoining defendants from closing the four port holes in the dam at any time or raising the height of the dam as it now exists in any manner." The court further found that "Since no proof of valuation of plaintiffs' property before and after flooding, or proof of rental value of the 2.6 acres during plaintiffs' ownership or cost of restoring premises to prior condition was offered, no finding can be made by this court in respect to damages." Upon this appeal the plaintiffs seek further relief to the extent of enjoining the defendants from maintaining the dam higher than the stream bed where the stream leaves plaintiffs' property. The present record, in its entirety, sustains the factual findings as enumerated albeit the defendants continue to commit a technical trespass on the property of the plaintiffs.
Judgment modified, on the law and the facts, by adding the proviso that the plaintiffs may apply for additional relief at any time at the foot of the judgment, upon showing substantial injury from any cause to them hereafter occurring; or at their election the plaintiffs may bring such separate action for other relief as they may be advised on account of any injury to their property hereafter occurring; and, as so modified, affirmed, without costs.
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