42 N.Y.S. 576 | N.Y. App. Div. | 1896
The plaintiff sought by this action to recover damages on account of the collection and discharge of surface water upon his land in-larger quantity than naturally flowed thereon, and which carried with it large quantities of dirt, stone and other material, cutting deep gullies in the land, and rendering the same unfit for the prosecution of his business thereon as formerly carried on by him. It was alleged in plaintiff’s complaint, and proof was given tending to support the allegation, that defendant caused the grade upon Bay View avenue, a street within the corporate limits of defendant, to he changed, and that by reason of such change of grade the surface water from a considerable extent of territory, which had theretofore distributed itself over a large surface without damage to plaintiff, was collected and diverted from its usual flow to the south, so as to run north along the gutter in said avenue to a point opposite plaintiff’s land where it was discharged in a solid stream upon plaintiff’s property, inflicting the damage complained of.
It is not disputed by defendant hut that there has been an increased flow of water upon plaintiff’s premises by reason of the improvement. But its position is that such increase is slight, that the work was authorized and properly performed, and that, in making the improvement, it exercised a legal right possessed by it to change the grade of the street, and, as no negligence is alleged in the character of the construction or in the performance of the work, no cause of action is made out. The cases upon this subject are numerous and the law is well settled. It is the undoubted right of a municipal corporation to grade its streets or change the grade when it deems it necessary so to do, and property owners have no ground of complaint even though the consequence be that surface water is thrown upon the
Lynch v. The Mayor (76 N. Y. 62), relied upon hy the defendant, recognizes the same rule. Authority is abundant in support of this principle. (Byrnes v. City of Cohoes, 67 N. Y. 207; Seifert v. City of Brooklyn, 101 id. 136; Anchor Brewing Co. v. Dobbs Ferry, 84 Hun, 276; Clark v. City of Rochester, 43 id. 271.)
The evidence in this case in support of plaintiff’s position tended, as we have seen, to establish the fact that the defendant collected and discharged surface water in a material quantity upon plaintiff’s premises and that he suffered damage therefrom. He became, therefore, entitled to have his evidence submitted and. passed upon by the jury, and it was error to deny him this right.
Plaintiff’s proof also tended to establish that, in the construction of the sidewalk upon Bay View avenue, the earth which furnished the foundation for the same was deposited upon plaintiff’s property to a width of .three feet, and extending along its easterly line nearly the entire length. The complaint alleged that such deposit was wrongful and that plaintiff suffered damage therefrom. Upon the trial, plaintiff requested the court to be permitted to go to the jury upon this question, which was denied. We think that this ruling cannot be supported. It has been held that no right exists in a municipal corporation to thus invade private property even though it be for a public improvement. (Moore v. City of Albany, 98 N. Y. 407.)
Plaintiff is entitled to maintain an action to recover the damage sustained thereby up to the commencement of the action, and to maintain successive actions for the recovery of damage until the nuisance be abated. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98.) And he may, by action in equity, recover the entire damage as and for a permanent appropriation of the property. (Henderson v. N. Y. Central R. R. Co., 78 N. Y. 423.) Upon
The judgment should be reversed and. a new trial granted, with costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.
