Webster Golf Club, Inc. v Monroe County Water Auth., 2023 NY Slip Op 05952 [221 AD3d 1604]

November 17, 2023

Appellate Division, Fourth Department

[*1]

Webster Golf Club, Inc. et al., Respondents-Appellants,

v

Monroe County Water Authority, Appellant-Respondent, et al., Defendants-Respondents, et al., Defendants.

—Motion for reargument or leave to appeal to the Court of Appeals be and the same hereby is granted in part and, upon reargument, the memorandum and order entered August 11, 2023 (219 AD3d 1136 [4th Dept 2023]) is amended by deleting the second through fourth sentences of the fifth paragraph of the memorandum and substituting the following sentences: The amended complaint, however, characterizes the specific water allegedly interfered with as water that “originate[d] on the property of [MCWA],” consisting of “wetlands on MCWA property, rainwater, groundwater and/or underground springs.” Thus, MCWA established, through plaintiffs’ own pleadings, that the specific water allegedly interfered with by MCWA was surface water. A landowner may alter surface waters “although thereby the water is prevented from reaching [the land] and is retained upon the lands above” and although it “prevents the water [from] reaching a natural water-course, as it formerly did” ( Barkley v Wilcox , 86 NY 140, 147-148 [1881]; see generally Friedland v State of New York , 35 AD2d 755, 756 [3d Dept 1970]). Present—Whalen, P.J., Smith, Bannister, Montour and DelConte, JJ..