WATERS AND WATERCOURSES - DIVERSION - RECIPROCAL EASEMENTS IMPLIED IN GRANT

The village of Canastota, New York, by deed acquired title to land in which originated a stream, with the right "to take, use and divert all said springs, streams and waters . . . or so much thereof as shall be necessary for the use of Canastota Water Works." Prior to this, the village had acquired from the lower riparian owners on the stream "all their title and interest, in and to the waters from the springs . . . the same to be forever, or so long as second party may desire, diverted . . . . " In consideration of the transfer, the village agreed to supply the granters with water from the waterworks "so long as said waters are diverted as aforesaid." Both instruments were recorded. About fifty years later the village desired to return the stream to its ancient channel, which had completely disappeared and leveled off. Held, that there had been a practical location concurred in for forty years as to the lands and rights conveyed and that a city could not turn its drainage upon the lands of another.

The dissenting judge said that, since an easement exists solely for the benefit of the dominant estate, it could be abandoned and the water returned to its ancient channel, and further, that the contract of the parties contemplated such abandonment. Strough v. Conley, 251 App. Div. 487, 297 N. Y. S. 785, 298 N. Y. S. 516 (1937).