15 N.Y.S. 724 | N.Y. Sup. Ct. | 1891
This action is brought to recover the expense of work done by the plaintiff, through its superintendent of streets, in removing alleged obstructions and deposits in that part of a certain stream called “Mill Creek,” which runs through defendant’s land. The stream is a natural water-course, not navigable; and the part in question is wholly within defendant’s land. The bed of this stream, therefore, is his, and he is the riparian owner. As such he has a right to the use of the water, being also under obligations to the owner below him in respect to the manner of its use. The plaintiff is not shown to be a riparian owner of any part of the stream, or to have any rights whatever therein. Although this pait of the stream is
It will be seen that the resolution of July 9th directed the superintendent to do this work under the resolutions of April 16th, April 23d, and May 7th. The superintendent testifies that he did the work under the resolution as amended. It does not lie witli the plaintiff to say, therefore, that tile amendatory resolution of May 7th was of no effect. The plaintiff treated it as valid, and the work was done accordingly. Row, section 61, above men
A more important question is upon the right of the plaintiff to do the acts for which it claims compensation, even supposing that the resolution had been properly passed and confirmed, and had not been affected by any subsequent resolution. Section 16, tit. 3, of the charter says that- the common council may remove encroachments in the manner therein after provided. Section 51 of title 7 uses the same language, but says that no action shall be taken, based on alleged encroachments, until the encroachment shall have been established, as provided in sections 4, 5, 6, and 7 of that title. Now, it is not pretended that any proceedings were taken under these sections 4, 5, 6, and 7 to establish that there was an encroachment, for these proceedings provide for a trial by jury; and the plaintiff on this argument has insisted that its action was not taken under the clause against encroachments, but under the clause of section 51 to remove deposits and obstacles. Now, if the plaintiff’s action was not to remove encroachments, it follows that plaintiff could not lawfully remove any of the existing banks of the stream, for if such banks were in any respect an interference with the flow of the stream, then they must be encroachments thereon, and could not be deposits or obstructions in the stream. A bank is not a deposit in the stream, nor is it an obstruction, as distinct from an encroachment. It appears from the evidence that there were trees along the banks where the stream passed through defendant’s land, which trees the plaintiff cut down and the roots of which plaintiff dug out. This fact shows that these trees and the banks on which they'stood could not have been deposits or obstructions in the stream. If these banks and these trees were nearer to the center of the stream than the original banks were, then they might be encroachments. If they were claimed to be encroachments, then the plaintiff could not act in respect to them except under the sections above cited, giving a jury trial, etc. But no such proceedings were taken. Very plainly the plaintiff cannot, by calling an “encroachment” a “deposit,” deprive the defendant of his right to a jury trial; and the words “deposits and obstructions” plainly designate different things from the word “encroachments.” But the plaintiff claims, under section 16, above cited, the right to establish and define by resolution the boundaries and grade of this stream, and claims that by its resolution it did this. The first objection to this is that defendant had no opportunity to be heard. There is no provision in section 16 for publishing a notice, and for giving a hearing to the parties interested. That provision is found in section 51, above cited, of another
It cannot be necessary to cite authorities, to show that the defendant was owner of the land over which the stream flowed, and had a right to the use of the stream, subject only to the similar rights of the upper and lower proprietors. The common council is not a tribunal to determine these rights; and defendant offered to show that, after the passage of the resolution, he cleaned out the stream, so that it was of the same width and depth that it
After the work had been done, the superintendent'of streets returned the amount to the common council, and that body audited it under section 48. If we look at the charter as amended by chapter 62, Laws 1873, we find that title 7, containing 60 sections, is re-enacted with amendments. Section 51 of that title is again amended by chapter 146, Laws 1877. Section 53 authorizes the expense to be audited and enforced as specified in reference to paving streets, and the provisions as to enforcing the expense of paving are found in the previous section 48. This declares that the city may recover from the owner or occupant the sum audited, with 12 per cent, interest; and that the account certified as audited shall be presumptive evidence to entitle the city to recover. Now, this auditing is done without any notice to defendant. He is not in any way a party. The work may be done without his knowledge. The superintendent states the amount expended without defendant’s knowledge. He determines what the extent of defendant’s property is, and how much labor was expended in front of it. On this ex parte statement the common council, without giving defendant an opportunity to be heard, audit and allow the account, and such audit and allowance is presumptive evidence against defendant. The defendant urges that under Stuart v. Palmer, 74 N. Y. 183, and similiar cases, this provision is unconstitutional. In the view we have taken of other questions, it becomes unnecessary to decide this point. We are, however, inclined to think that, as the audit is only presumptive evidence, the defendant has his day in court by having the right to show the value and extent of the work done in front of his land. Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. Rep. 663.
The defendant set up a counter-claim for injury done to his land, and the question arises whether, if plaintiff cannot recover, defendant may be allowed to prove this counter-claim in this action. By an amendment of 1877, section 501 of the Code contains the words, “must tend in some way to diminish or defeat plaintiff’s recovery. ” These were not in the section when the case of Manufacturing Co. v. Ball, 61 N. Y. 226, was decided. Now, if the plaintiff is entitled to recover in this case, in the cause of action alleged, then plaintiff committed no trespass, and defendant has no right of action. This counter-claim cannot tend to diminish or defeat plaintiff’s recovery. It is entirely inconsistent with any cause of action on plaintiff’s part. In Carpenter v. Insurance Co., 93 N. Y. 552, the plaintiff had a cause of action against the defendant for the conversion of the wood. Defendant’s counter-claim arose out of its equitable right as mortgagee to insist that its security should not be changed by plaintiff’s cutting the wood. The counter-claim, therefore, tended to defeat plaintiff’s legal claim. This present action is brought under the charter to recover for money expended by plaintiff, and is in the- nature of an action for money paid "for the benefit of defendant, (section 48,) although we are not disposed to say that it is an action on contract. The counter-claim is for trespass committed by plaintiff by the acts in doing which the money was expended. It probably could not be said that this counter-claim for trespass arose out of the transaction set forth as the foundation of plaintiff's claim. People v. Dennison, 84 N. Y. 272. The work done by plaintiff on the land would not constitute the claim. That must arise on the previous resolutions and the subsequent audit. If plaintiff is correct in its claim, the audit is evidence without proof of the woilc. At any rate the work alone is not the foundation of plaintiff’s claim; and, however this may be, we think that the clause above cited from the section shows that the allegations of defendant’s answer cannot be allowed as a counter-claim, for it is evident that they could not be proved as a claim until
Laws 1889, c. 97, § 6, amending the charter by adding section 61 to title 7, provides that_“whenever the common council shall adopt or pass an ordinance or resolution requiring any * * * deposits or obstructions in any of the natural water-courses or streams in said city to be removed, and that such work be done at the expense of the owners or occupants of the lots or buildings adjoining, adjacent to, or lying upon such * * * stream or water-course, the common council shall give notice by the publication thereof for at least five days in one of the public newspapers of said city that it will at a time and place therein stated, which shall not be less than five days from the first publication of such notice, meet to again consider such ordinance or resolution, at which meeting all parties interested therein will be heard. The common council, at the time and place named in such notice, * * * shall hear all parties interested in the matter of such ordinance or resolution who shall desire to be heard, and * * * after such hearing shall again consider such ordinance, and may confirm, modify, or rescind the same. ”