171 N.Y. 336 | NY | 1902
The plaintiffs and the defendant are owners of adjacent properties on a street called the Riverway, in the city of Niagara Falls. The plaintiffs have constructed on their land a building used for a museum, with large skylights in the roof. The defendant has built on its land a hotel and a tower or observatory. This tower is about two hundred feet high, and is constructed of an open iron framework with braces and cross girders. At the top of the tower there is an observatory. Visitors are carried to and from the observatory by elevators. The whole structure is several feet within the limits of the defendant's land. As found by the trial court, during the winter ice is formed on the structure from sleet, melting snow and spray from the Falls of Niagara, which accumulates, *338 and when a thaw occurs large quantities of ice fall from the tower upon the roof of the plaintiffs' building, in size and with velocity sufficient to endanger human life, by means of which plaintiffs' building and property have been injured. The action was brought to recover damages and for an injunction to restrain the defendant from so maintaining the tower as to suffer ice to fall therefrom on the plaintiffs' property. The trial court also found that the injury to plaintiffs' building and the accumulation and fall of ice from the tower on the plaintiffs' property recurred each winter during periods of thaw. It further found that the tower was a safe, substantial and suitable structure for the purpose for which it was used. On these facts it decided, as a matter of law, that the maintenance and construction of the tower was a private nuisance, and that the plaintiffs were entitled to a perpetual injunction restraining the defendant from so maintaining the structure that ice would form thereon and fall on the building and premises of the plaintiffs. A reference was ordered to ascertain the plaintiffs' damages. On the report of the referee final judgment was entered for an injunction and damages. This judgment was affirmed by the Appellate Division and an appeal has been taken to this court.
The affirmance below having been unanimous, the question presented here is whether the facts found entitle the plaintiffs to judgment. The court has not found any negligence in the character or plan of the structure maintained by the defendant. The element of negligence being thus eliminated, the plaintiffs' right to recover depends on the duty that the defendant owed to adjacent owners with reference to ice that might accumulate on its building. The law with reference to rainfall seems well settled. So long as the owner of land leaves it in its natural condition he is not required to adopt any measures to prevent the flowage of surface waters from his premises on the adjoining land (Vanderwiele v. Taylor,
I think the judgment below was right, and that it should be affirmed, with costs.
PARKER, Ch. J., GRAY, BARTLETT and WERNER, JJ., concur; O'BRIEN, J., dissents; HAIGHT, J., not voting.
Judgment affirmed.