187 Misc. 931 | New York Court of Claims | 1946
On September 14, 1944, claimant was, and since the year 1940 had been, the owner of a parcel of land with a dwelling house located thereon, situate on the southerly side of the highway running from the village of Clinton, New York, on the east to Hamilton College on the west, both located in the county of Oneida, New York, which highway then was, and now is known as the Clinton-College Hill highway, by which name we
On September 14, 1944, surface waters flowed from the said Clinton-College Hill highway and from said afore-mentioned intersection onto claimant’s land above mentioned to a depth sufficient to surmount a board barrier extending six inches above the level of the lawn in front of the cellar windows and accumulated in the cellar of claimant’s house to a depth of three feet. Damage was by reason thereof sustained by claimant to her real estate, to its appurtenances, and to some of her personal effects and furniture contained in her said house.
Claimants claim herein against the State has been brought to recover for the damage alleged to have been thus sustained by her, and it is predicated upon allegations of negligence and of nuisance in connection with the construction and maintenance by the State of the storm-water sewerage and drainage facilities provided by the State for claimant’s premises and for other premises in the vicinity of claimant’s property and in the area adjoining said intersection. The State contends that the drainage and sewerage system' had been built in accordance with accepted engineering standards; that its capacity was sufficient for the locality; that it was properly maintained, and that in any event, the damage suffered by claimant was occasioned by surface waters suddenly and unexpectedly augmented to flood proportions by a rain storm of such unusual severity, and of such unprecedented and extraordinary character, as to be deemed an act of God which could not be reasonably anticipated or provided against in the exercise of ordinary diligence.
The record discloses that the following physical conditions relative to the subject matter of our inquiry obtained at and in
From said catch basin “D” aforesaid on the south side of said Clinton-College Hill highway, there ran a storm-water sewer constructed by the State, and consisting of a twenty-four-inch pipe. This pipe traversed underground the afore-mentioned intersection on the south side thereof by means of a concrete culvert, and emptied into a structure forty-five inches wide and thirty-six inches high, located just east of the southeasterly corner of said intersection (point“ C ” of claimant’s Exhibit 4). At said point “C” there was a juncture of said storm-water sewer with another conduit carrying a stream course coming from the south of said afore-mentioned intersection and running along the east side of said Deansboro-Kirkland highway. This stream course, before making- said juncture aforesaid, flowed easterly down the. hill west of said intersection, through partially wooded terrain, parallel to, and at some distance south of the Clinton-College Hill highway. It crossed the said Deansboro-Kirkland highway underground by means of a culvert going from the west side to the east side thereof, where it emerged
There was a raised curb seven or eight inches in height which extended all the way down both sides of that part of said Clinton-College Hill highway which was west of the aforesaid intersection; and there was a curb about the same height at the southeasterly corner of the afore-mentioned intersection just west of point “C” aforesaid. The easterly end of this curb at this latter point, was ten or twelve feet west of the westerly end of the open ditch referred to hereinbefore as extending between points “B” and “C” aforesaid. Its obvious purpose at the intersection was to prevent surface waters coming down the hill, west of the intersection, from running off the intersection and onto the lands to the south and east thereof.
On the north side of said Clinton-College Hill highway in the vicinity of claimant’s property, and at said intersection, there was on the day of the overflow, a storm sewer consisting of an eighteen-inch tile pipe. This pipe commenced at a point on the north side of said highway just north of the paved portion thereof, and just west of the westerly line of the afore-mentioned intersection and continued easterly to the intersection. It continued underground through said intersection as a twenty-four-inch pipe, went through a culvert two feet square and one hundred feet long and emerged on the easterly side of said intersection into an open ditch. There was no accurate
Commencing at the west side of the afore-mentioned intersection there was steep rising ground which continued westerly about up to the campus of Hamilton College. This steep rising ground was described as having the following ascending grades for the following distances: 10% for about 500 feet; 12% for 800 feet; 7%% for about 500 feet; 9% for 300 feet; 10.6% for 500 feet; and 8.6% for 200 feet in the sequential order named. From this last-mentioned point the grade flattened out to a 1% ascending grade for a distance of about 1,000 feet at which point one arrived at the campus of Hamilton College. The banks on either side of the Clinton-College Hill highway west of said intersection were steep, attaining a height of ten to fifteen feet from the level of the highway. There were houses on both sides of this hill with private driveways coming out onto the hill.
Commencing at the southeasterly side of the afore-mentioned intersection and proceeding easterly therefrom on the said Clinton-College Hill highway there was a descending grade of 3.1% for 400 feet which thereafter progressively scaled down to a .8% descending grade at or near the point on said highway where the stprm water sewer on the south side of said highway crossed the same to the north side thereof to outlet into the ditch beyond point “A” (claimant’s Exhibit 4). Claimant’s house is at an elevation which is lower than that of the surface of the highway on which it abuts. Such was the case when the highway was constructed and, of course, such was the case in 1940 when claimant purchased the premises. The elevation of the land at the southerly edge of the pavement was given as 194 feet. From that point going southerly, the land dips forming a little gutter, the southerly side of.which said gutter is about an inch and a half below the pavement level and then, from that point the elevation of the land goes down to an elevation of 193 feet at the house. There is thus a differencé of one foot in elevation between the level of the pavement and of the ground where the house stands.
On September 14,1944, afore-mentioned, the rain had started to fall at about 2:30 or 3:00 p.m., the evidence on this point, however, not being too clear. It rained hard for about one hour and then it slackened some. The rain continued to fall, however, until about 6:00 p.m. The rainfall was severe and is described in the evidence as “ torrential ”. The rainstorm is variously described in the evidence as a “ terrible storm ’% “ an unusual
The foregoing we believe is established by the record and shows the physical conditions existing and obtaining on the day of the overflow in the area, at, in and about claimant’s property which area is shown generally on claimant’s Exhibit 4 aforementioned. Let us now consider the contentions of the claimant and the position of the. defendant with reference thereto. What duty or responsibility did the State owe to the claimant under the circumstances indicated herein?
The fact that claimant has. sustained damages does not in and of itself entitle her to recover against the State. Td entitle claimant to recover under her claim as filed, claimant must show, not only that the defendant was negligent but also that such negligence was the proximate cause of the overflow. (Annino v. City of Utica, 276 N. Y. 192; Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47.) To succeed upon the theory of nuisance she must establish the essential and necessary elements constituting the same. Legal or proximate cause is always dependent upon the facts of a particular case and for this reason the words are beyond definition or conclusive explanation. Very often it is confused with the preliminary question whether there is any negligence at all. (O’Neill v. City of Port Jervis, 253 N. Y. 423.)
There was no duty on the part of the State to provide drainage for claimant’s premises or those of other adjoining owners; and no action lies at the instance of an individual for damages based upon a failure to act. (Ebbets v. City of New. York, 111
The evidence adduced upon the trial failed to establish any of the essential facts required for recovery against the State and particularly upon the grounds alleged in claimant’s claim. Let us consider these particular grounds. First as to the construction óf the sewerage and drainage facilities: It appeared that they were built according to accepted engineering standards and that .they were adequate to drain and carry off the surface waters which were the result of ordinary and normal rainfalls, and also of such storms which could reasonably be anticipated, with the exception hereinafter noted, in the area which the said storm sewers were designed to drain.
Claimant’s evidence with reference to the capacity of the storm sewers and particularly as to their inadequacy to drain the area in question is, in certain of its essential elements, not of a very convincing quality. The record on this point indicates the following: That the fifteen-inch storm-water sewer as it came down the Clinton-College Hill highway west of the aforementioned intersection at a 10% grade had a capacity of 9,000 gallons of water per minute; that the capacity of the twenty-four-inch storm sewer pipe under the intersection on the south side thereof at the particular established grade up to point “C” (claimant’s Exhibit 4) was about 28,000 gallons of water per minute; that at point “B” (claimant’s Exhibit 4), the twenty-
The capacity of the natural water course coming in from the south into the structure at point “0” (claimant’s Exhibit 4) is given as being 15,000 to 20,000 gallons “ free flowing, ” without being under pressure. We are not impressed with this testimony as the claimant’s witness, Mr. Shaw, who gave it, stated that in his opinion it was not possible, merely from a knowledge of the area of this natural water course, to estimate its capacity to take water because that depended on some knowledge of the side walls and of the bottom thereof, which information and knowledge the witness admitted he did not have. In fact, he himself stated that to give an estimate as to the capacity of this natural water course would be “ very much of a guess ”. His testimony as to the inadequacy of the storm water sewers admittedly was based upon no detailed computations as to the area, square mileage or nature of the terrain which comprised the watershed served by this sewerage and drainage system. He gave what he characterized as his “ engineering opinion ” on both the two last-mentioned points. His “ engineering opinion ”, the witness stated was based upon his experience and that only. We feel that this type of testimony leaves too much to be desired by way of accuracy and depends too much upon speculation and surmise. A question of negligence cannot be left to guess, speculation and surmise. (Lahr v. Tirrill, 274 N. Y. 112.)
We can find no evidence in the case as to the amount in inches of rain which fell on the day of the overflow or on the occasion of any previous, similar or comparable rainstorm. We are thus left without the benefit of exact information on this important point. While claimant adduced some proof as to the capacity of the storm sewers and while claimant’s proof as to their inadequacy is based upon the assumption that said storm sewers were flowing full to capacity at the time of the overflow, we have been unable to find anything in the evidence which satisfactorily indicates that said storm sewers were indeed carrying their capacity load at the time of the overflow. True it is, that there is some proof that the cover on the structure at point “O”' (claimant’s Exhibit 4) was off but the cause of its being off,
The clogging to some degree of gratings on catch basins by water-borne debris is undoubtedly a frequent occurrence in terrain such as we have been discussing, and the removal of the gratings affords no solution to the problem. Good construction practice requires that some method be used to exclude materials that might get into and block the underground pipes, and to protect the general users of the highway against the hazards of an unguarded opening. (Fuller v. State, 46 N. Y. S. 2d 762.)
A municipality is not liable for an increase in flow of surface waters resulting solely from pavement of streets or other improvements and cannot be required to limit the amount of surface water discharged into a stream to the natural flow of said stream before such improvement. (Fox v. City of New Rochelle, 240, N. Y. 109.) If, however, the city collects surface waters into a single channel, and casts it in a large and substantially increased volume on an adjacent owner so that the stream will be filled beyond its natural capacity and thereby causes the stream to overflow ánd flood his lands, the owner has a cause of action. A municipality has no immunity from legal responsibility for creating or maintaining nuisances. (Noonan v. City of Albany, 79 N. Y. 470; Foster v. Webster, 44 N. Y. S. 2d 153, 158.)
It has been held that when without the creation of a defined water course or the alteration of an existing one the result is "so to change the natural contour of the land as to cause surface waters to collect in a highway and overflow a neighbor’s prop
In the instant case we can find no diverting or obstructing by the State of the runoff of surface waters from the watershed from the course of its natural flow, no collecting of the same in an artificial channel, and conducting of it to a given point with no adequate or proper outlet, and no discharging of the same in great volume upon the lands, of another. (Byrnes v. City of Cohoes, 67 N. Y. 204, supra; Seifert v. City of Brooklyn, 101 N. Y. 136, supra.) We do not believe that the act of the State in putting the sewer pipes in the ditches, and then covering up said pipes by filling up the ditches, in and of itself, constituted an act of actionable negligence on the part of the State. We-hold, therefore, that upon the record claimant has failed to establish that the storm sewerage and drainage system on the day of the overflow was improperly or negligently constructed and was inadequate.
As to maintenance, care and inspection: There is evidence of regular inspection and of maintenance by the State of the sewerage and drainage system, and particularly of such inspection and maintenance within a reasonable time of the day of the overflow. The record indicates that at, or about, the time of the overflow the sewers in, about, and under the intersection were clear of debris and obstruction and that water was flowing freely through the pipes. The clogging and obstructing of the gratings hereinbefore referred to appeared to have occurred only on the occasions of these severe and unusual storms. On the occasion complained of, though ineffectual to prevent claimant’s damage, the accumulation of debris on the gratings were removed therefrom within a reasonable time after the storm subsided. It does not appear that any reasonable inspection such as could be exacted by the most rigid laws imposed upon a municipality in charge could have revealed the obstructions on the gratings in time to have avoided and averted the overflow. (Beyer v. City of New York, 141 App. Div. 679.) We find
In view of what we have hereinbefore held, it follows that claimant has failed to establish the creation and maintenance of a nuisance by the State with reference to said drainage and sewerage facilities aforesaid, and we so find and hold.
We have hereinbefore referred in detail to the rainstorm which occurred on the day of the overflow. We are unable to agree with the State that said rainstorm was of such unusual, extraordinary and unprecedented severity and character that it could not reasonably have been anticipated or provided against in the exercise of ordinary care and diligence; and that in fact said rainstorm was such as to be deemed, an act of God. Assuming that the rain storm complained of herein was unusual, severe and even extraordinary, it appears that" it had been-preceded in previous years by others of a similar nature. There is evidence that there had been at least one such storm sufficient in volume, intensity and severity as to cause an overflow of surface waters in the vicinity of said intersection with consequent flooding of claimant’s property, each year for several years previous to the one of September 14, 1944. Claimant herself testified that the rain storm complained of was the third of its character that she had experienced since her purchase of the property in 1940. Under these circumstances we hold that the rain storm of September 14, 1944, though severe, unusual and extraordinary was not unprecedented and was not an act of God. In Daly v. State of New York (226 App. Div. 154,157) the Appellate Division in the Third Department said: “ * * * The exercise of ordinary care requires precaution as well against the extraordinary as against the ordinary. It is only the unforseeable in the exercise of ordinary care, or the act of God, that exculpates the negligent wrongdoer. (Crowley v. State, 99 App. Div. 52; 112 id. 872.) ”
We are satisfied from the evidence that the State was or should have been aware in the exercise of ordinary care of the occurrence and- recurrence of these storms. (Dekowski v. County of Montgomery, 263 App. Div. 697.)
This conclusion on our part, favorable as it is to the claimant, does not answer the question of legal liability and is not enough in our opinion to hold the defendant liable and responsible under the circumstance herein.
It must be borne in mind that the claimant’s premises are located at or near the base of a steep hill, that the flow of water
Claimant has suffered damage through the unfortunate occurrence described in her claim and detailed in the evidence. We are satisfied, however, that she has failed to maintain the burden of proof required to establish that the State is responsible for her damages.
Defendant’s motion for dismissal of the claim herein.made at the end of claimant’s case and upon which decision was reserved is denied with an exception thereon to the defendant. Defendant’s motion for a dismissal of claimant’s claim made at the conclusion of the entire case is granted with an exception thereon to the claimant.