141 N.Y. 521 | NY | 1894
The defendants in the year 1890, under a contract with the city of Brooklyn, constructed a conduit running in an easterly and westerly direction, connecting certain ponds at Massapequa, Long Island, with the Ridgewood reservoir, in aid of the water supply of the city. The conduit line crossed the valley of James brook, a small stream running northerly and southerly, which supplied a pond of the plaintiff on his premises about a mile below the point where the conduit crossed the stream, which furnished the water power for a small mill on the plaintiff's land, which had existed there for more than fifty years. The defendants excavated a trench for the conduit from twelve to twenty-two feet in depth. The evidence tends to show that as the excavation approached the channel of the stream the water in the plaintiff's pond began to lower, and that since its completion the pond has been substantially drained so as to destroy the water power, and the plaintiff has suffered a serious injury. In building the conduit across the stream the water was temporarily diverted from the channel. But after the conduit was covered and the bed of the stream at the point of crossing was restored to its original state, the pond as has been stated did not retain the water flowing thereto, and the evidence justifies the inference that the water of the pond passed by underground drainage through the earth into the channel of the conduit and was thus lost to the plaintiff. It has been held that such an injury is actionable. InDickinson v. Canal Co. (7 Exch. 282) the defendant sunk a well on its premises and pumped therefrom large quantities of water to supply its canal, whereby water that had already reached a surface stream was diverted by percolation from the plaintiff's dam, and the court decided that an action for damages would lie. In the case of Van Wycklen v. City of Brooklyn (
It is conceded that the conduit was laid upon the lands of the city of Brooklyn under a contract with the city. The contract is not in evidence, but the court on the trial ruled, upon the request of the defendants, that the jury could not infer that the conduit was constructed contrary to the terms of the contract. The plaintiff acquiesced in this ruling, and the fact inferrible from the evidence is that the defendants in constructing the conduit, and in the manner of executing the work, were complying with their contract with the city. We think the defendants are liable for any injury sustained by the plaintiff, resulting from the actual interruption of the flowing of the stream during the time they were engaged in constructing the conduit across it. It was a patent violation of the property rights of the lower proprietors, not justified by any necessity so far as the record shows. The maxim aqua currit et debit currere, says DENIO, J., in Bellinger v. N.Y.C.R.R. Co. (
The judgment should be reversed and a new trial ordered.
All concur.
Judgment reversed.