114 N.Y.S. 544 | New York Court of Claims | 1908
The claimant in this case was a tenant, in 1902, on a farm situated in the' town of Manlius, on Limestone creek, about half a mile north of the Erie canal. Limestone creek passes underneath the canal, which is carried over the creek by means of an aqueduct. There are three gates in the aqueduct for discharging the surplus water of the canal into the creek. Connected with the canal and the creek is a canal feeder, which feeds the canal near the aqueduct, The feeder is about half a mile long, It }s
The damages are alleged to have occurred July 21, 1902. It had rained, on the nineteenth and twentieth of that month, a total of one and forty-three hundredths inches of water on the watershed of Limestone creek, as measured at Fayetteville by the weather observer. The claimant noticed the water rising in the creek and overflowing its banks north of the canal, and with two or three of his neighbors went to the aqueduct and feeder to see whether any water was coming from the canal. He says: “ On the morning of July 21st about 9 o’clock I saw the creek coming out of the bank and I and some others went up and we found one gate open in the aqueduct and three gates' open in the wasteweir.” He also says that water was running over the spillway of the aqueduct into the creek. He walked up to the aqueduct and wasteweir about ten o’clock and remained about half an hour, then went to the south end of the feeder and found the gates closed there. Forth of the canal, he says, the water in Limestone creek was in its channel ; and at nine o’clock south of the canal the water was going over the banks of the creek pretty freely and increased until about four o’clock in the afternoon. The water covered about forty-three or forty-four acres of his land. There were some high places that it did not touch, and in some places it was deeper than in others; but it covered the meadows and low places from six inches to a foot. He says: “ It remained that day and the next day. About two or three o’clock we noticed it going down. Of course some places it didn’t go off in a week, where it settled back.” It was two or three days before the water was all off. The creek was within its banks above the wasteweir, that is,
He says the gates of the aqueduct were closed on the evening of the day that the damage occurred. It appears that the water in the canal was from six to eight inches above normal level. It appears from the testimony of a former State employee that, on one occasion in July, 1891, he opened three gates in the aqueduct, while the banks of the creek were full, and the water from the canal overflowed'the creek in about three hours. But the same witness testified that he had seen the flats overflowed in summer when the gates were open. Another witness, however, for the claimant, testified: “ I have never known in the nine years when I was on the Stern’s farm (which is north of the canal not far from the Carhart place) the creek to overflow the banks when the gates weren’t open. Q. You mean in cropping season? A. When the gates weren’t open but when they are open they can overflow at any time; they can overflow the Stern’s farm in an hour and a half after they open the gates at any time, because we are right under it, and we get it before anybody does.” Another witness testified that he crossed the creek about five o’clock in the morning and that, at that time, the creek was “a little high;” that he walked across it with rubber boots; that he observed the creek again about nine o’clock and that, at that time, the water was all over the flats around
Hnder these authorities the claimant is entitled to recover and, as there is no proof that any damages would have resulted to him irrespective of the negligence of the State, he is entitled to recover the full amount of the damages established, to-wit, $507, with interest from the date of the entry of the judgment.
Judgment for claimant.