The opinion
The license by the Commission, whether within the jurisdiction of *Page 504
that body or without it (cf. People ex rel. Lehigh Valley Ry. Co. v. State Tax Comm., 247 N.Y. 9 , 15 ), did not exempt the holder from liability for damage caused to others by a diversion of the waters, nor authorize the impairment without requital of existing rights of property (U.S. Code, title 16, § 803, subd. c; § 814; Otis Co. v. Ludlow Mfg. Co., 201 U.S. 140 , 152 ; Kaukauna Co. v. Green Bay Canal Co., 142 U.S. 254 , 276 ; Head v. Amoskeag Mfg. Co., 113 U.S. 9 , 23 , 26 ).
Until such rights have been condemned by appropriate proceedings (U.S. Code, title 16, § 814; cf. N.Y. Condemnation Law [Consol. Laws, ch. 73], §§ 17, 24; Sweet v. Rechel, 159 U.S. 380 , 401 ; Crozier v. Krupp, 224 U.S. 290 ), the defendant is still a trespasser in obstructing the flow of the stream to the damage of a neighbor.
Whether the power of eminent domain may lawfully be exercised under section 814 of the statute by one so situated as the defendant is a question not before us.
The judgment should be affirmed with costs.