Mikoll and Harvey, JJ., dissent and vote to modify in a memorandum by Mikoll, J. Mikoll, J. (dissenting). We respectfully dissent.
The town is not required to show that it did not increase the flow of water through the culvert. The town could properly have increased the flow of water through the culvert as long as the increase was not "in such quantity as to exceed its natural capacity resulting in overflow and flooding of land along the stream at lower locations” (Stanklus v County of Montgomery, 86 AD2d 908, 909; accord, Noonan v City of Albany, 79 NY 470). "[A]s long as the natural capacity of the stream is not exceeded, a riparian owner may increase the quantity of water placed into such stream” (Stanklus v County of Montgomery, supra, at 909; accord, McCormick v Horan, 81 NY 86). There is no credible evidence in the record that the natural capacity of the stream or of the culvert was exceeded. Rather, the evidence indicates the problem was due to blockage of the culvert, not an excessive waterflow. Harold Morrill, Division Engineer of the County Highway Department, testified in his examination before trial that the "principal cause of this continuing problem * * * was due to trash and debris being thrown either intentionally or otherwise in front of the culvert. * * * There didn’t seem to be a question because there were occasions when there was no trash, the culvert operated perfectly regardless of the rainfall.” William Whit-beck, the general labor foreman of the County Highway Department, testified in a pretrial deposition that he went to the scene of the culvert at about 9:15 p.m. on March 14, 1986 and found water flowing across the road approximately two inches deep. He went to the inlet end of the culvert to relieve the problem but was not able to do so. He then called for a backhoe from the town and, after about 45 minutes of effort, *1138the culvert was freed. William Reich, County Superintendent of Highways, testified at his pretrial deposition that he generally made an assessment of the source of the water flowing through the culvert but that the county never did a study on the volume. No liability attaches to the town because of the increase in the volume of water flow which did not exceed the stream’s capacity (see, Stanklus v County of Montgomery, supra; see also, Beck v City of New York, 23 Misc 2d 1036, 1041,1045-1046, affd 16 AD2d 809).
There is evidence in the record refuting the allegation that any affirmative act of the town created such an increase of the water flow through the culvert as to cause plaintiffs’ water damage. The allegations of the complaint in this regard are rebutted. Summary judgment should therefore have been granted in favor of the town granting its motion in toto and dismissing the complaint against it (see, Goldstein v County of Monroe, 77 AD2d 232, 236-237).