34 N.Y.S. 968 | N.Y. Sup. Ct. | 1895
This is an appeal from a judgment rendered upon the verdict of a jury in the Albany county court for the sum of $-187.15, damages and costs. The plaintiffs, in their complaint, allege that they are the owners of certain real estate in the town of New Scotland, situated on what is known as the Delaware turnpike or road, in said town; that at the time of the said injury to the premises, and for many years prior thereto, a creek or stream of water flowed through a culvert on said Delaware turnpike, in front of or near the premises of the plaintiffs, and thence flowed across and over the lands of the plaintiffs; that for some years past, and at the time of the injury mentioned, said culvert through which said creek or stream flowed was, and is now, too small and insufficient to carry the water that came from said creek or stream, so that the water was stopped, in part, in flowing through the same, and that said culvert was improperly constructed, and that it was not large enough to let the water pass through; that on the 4th day of May, 1893, and also on the 23d and 24th days of August, 1893, on account of said condition of said culvert, the water backed up in said culvert, and overflowed the same, and passed over and upon the said turnpike, thence to the plaintiffs’ lands, overflowing the same, and damaging the real and personal property of the plaintiffs in the sum of $500. And the plaintiffs further allege that before said overflow and damage, and for the past three years, they had notified and advised the highway commissioners of the defendant of the defective condition of said culvert, and requested them to repair and enlarge the same, but that they had failed and neglected to dó so. They further allege that said injury was caused solely through the neglect of the defendant, its servants, agents, or officers, in failing to keep the culvert, highway, and road in proper repair and condition. Upon the trial it appeared that at the times named in the complaint there were severe storms, and the surface waters and the water from the creek in question, and from a place designated as a “cave,” were too great in amount to pass through such culvert, but backed up, overflowed the road, and passed upon and over the plaintiffs’ premises, causing considerable damage and destruction of property. In addition to what was alleged in the complaint, it appeared upon the trial that the culvert in question was one that had been built many years ago, and at a tinte when the Delaware turnpike or road was owned by a stock company.
At common law a town would not be liable for damages caused in the manner set forth in the complaint. The towns of this state are corporations for certain specified and limited purposes only, and have a limited corporate capacity. In caring for the bridges, roads, and highways of the town, they are not corporations, but political divisions of the state, organized for the convenient exercise of por
“Culverts and sluices are proper and necessary in highways, but their location and manner of construction are very much within the discretion of the public officers; and they should not be harassed by personal actions for injuries occasioned by inadvertence, or error of judgment, nor for a mere omission to perform an act which, although proper, or even necessary, to prevent incidental injury, when the performance cannot be exacted as a legal right.”
In Acker v. Town of Newcastle, 48 Hun, 312, 1 N. Y. Supp. 223, where an action was brought to recover damages sustained by the plaintiff because, in repairing the highway, it had been done in such a manner as to throw the surface water upon the plaintiff’s lands, it was held “that it was not part of the duty of the defendant to provide culverts to carry off such water.”
This is not a case where, by the building of a drain or sluiceway, waters have been concentrated together, and cast upon the plaintiffs’ premises, where otherwise they would not have gone, as in Noonan v. City of Albany, 79 N. Y. 470, and cases of like character. At the most, all that can be said is that a culvert has been provided insufficient in size to carry off the surface water and the water of a running stream in times of storms. But, assuming that to be negligence, it is not every negligence of a highway commissioner, even in performing or omitting to perform an official duty, that renders a town liable. The liability of a town is, as we have seen, a purely statutory one. “Statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires.” Fitzgerald v. Quann, 109 N. Y. 441, 17 N. E. 354. The language of the statute is that the town shall be liable for all damages “sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town.” The negligence of a commissioner of highways, then, which will render a town liable, is negligence which creates or permits a defect in a highway. In Whitney v. Town of Ticonderoga, 127 N. Y. 40, 27 N. E. 403, it was held that the term “defective highways,” as used in chapter 700 of the Laws of 1881, “was used in reference to their condition for public travel upon them, which their designation as highways imports, and in view of the purpose for which they are established and maintained.” In this case there is no claim that the plaintiffs’ damages resulted from any defect in the highway, as such. They did not happen because of the condition of the road for public travel. In Robinson v. Town of Fowler, 80 Hun, 105, 30 N. Y. Supp. 25, this court held that an action could not be maintained against a town for negligence of the highway commissioners in blasting rock for the purpose of widening a highway so that vehicles could pass each other, no defect in the highway itself causing the injury.
For these reasons the judgment should be reversed, and a new trial granted, costs to abide the event. All concur.