78 A.D. 515 | N.Y. App. Div. | 1903
The owner of certain premises located in the city of New York, immediately adjacent to the city of Mount Vernon, brings this action against the city of Mount Vernon for damages alleged to have been sustained by the plaintiff by reason of the creation or maintenance by the latter of a nuisance, whereby plaintiff was specially damaged. The parties to the -action have stipulated that the system of drainage constructed and maintained by the city of Mount Vernon, complained of in the complaint, was, is and is intended to be a permanent structure and the defendant intends to maintain the same permanently as the same is now in operation, and that if the defendant is liable for any damages in this action for creating or maintaining a nuisance, the plaintiff shall be allowed to prove and recover as his damages for such nuisance the difference in the market value of his property, with or without such nuisance, which may have been or be caused by the acts of the defendant, complained of in this action; and that the plaintiff shall not bring any further action, at law or in equity, to recover damages from the defendant for any acts of the latter in the event of his recovering herein the difference in the market value of his property with and without the aforesaid nuisance. It was also stipulated upon the trial that the referee might visit the property involved in the controversy and view the same, and that his view might be taken in •consideration by him in determining this case, “not only his'view as to these obstructions, but his view as to the lay of the land ; his view as to what is swampland and what is not swamp land ■—in other words, that his inspection should be used by him with the same force and effect as if he were a commissioner to determine the value of real estate or the damage done to real estate in condemnation proceedings.”
While the defendant urges, on the authority of Claflin v. Meyer (75 N. Y. 260, 267), that the facts appearing to the referee upon such view should appear in the record, we are of opinion that under this stipulation, in the absence of evidence that the referee proceeded upon an erroneous theory of the law, there is no question of the amount of the damages to be reviewed upon this appeal. The evidence on behalf of the defendant shows that the property was worth at least $100,000, while that of the plaintiff places the figure
The plaintiff is the owner of certain real estate described in the complaint, located in the city of New York, upon the boundary of that municipality and the city of Mount V ernon. Prior to the year 1892, from time immemorial, a natural stream of pure, wholesome water, starting in the vicinity of Twelfth avenue and Second street in the city of Mount Vernon, flowed southwesterly through the block bounded by Twelfth and Thirteenth avenues and Second and Third streets, and across Thirteenth avenue, at a point distant about 150 feet northerly from Third street, then flowed in a southerly direction across Third street to the southerly boundary line of the city of Mount Vernon, and then through plaintiff’s land. This was a small brook, the bed of it being about one and one-half feet deep, and three feet wide at the top and two feet wide at the bottom. In 1892 the then village of Mount Vernon caused a sewer to be constructed through Thirteenth avenue, between Second and Third streets. In the construction of this sewer, and in changing the grade of Third avenue, the village obstructed said natural stream by running it, or attempting to run it, through an inadequate culvert under Thirteenth avenue. This caused the water to back up and flood adjoining property in times of rains and freshets. This condition continued until after 1895, when the city entered into a contract for the construction of drains to carry off the surface water with Oortright & Kenlon. It appears from the evidence that owing to the errors in the engineering plans the difficulties with the sewer system continued, and that an effort was made to induce the plaintiff in this action to permit the defendant to enter upon his premises for the purpose of making repairs or alterations in the system. This being denied, the city called upon its board of health to force the construction of an outlet through the premises of the plaintiff. This was done, the defendant in the meantime having caused the natural stream to be tilled up its entire distance through the city of Mount Vernon. In place of the natural stream a twenty-four-inch sewer pipe was laid, connecting the surface drainage of the entire watershed by means of catch basins and lateral drains, so that
After a careful examination of the long line of authorities called to our attention by the learned counsel for the defendant, we are unable to distinguish this case in principle from that of Noonan v. City of Albany (79 N. Y. 470) and the many cases which have followed its doctrine, down to and including Huffmire v. City of Brooklyn (162 N. Y. 584, 590), where the leading case is cited. In Carll v. Village of Northport (11 App. Div. 120, 121) the court say : “ 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 land, or caused to flow thereon in larger quantity than formerly, or is prevented from flowing therefrom and is collected thereon. But no right exists to collect a material body of water by diverting it from its natural flow or by other means to gather it together, and when thus collected to conduct it by any artificial channel and discharge it in a body upon private property.” The defendant seeks to distinguish the line of cases, of which this is one, upon the theory that the defendant had not diverted the water from its natural flow, but has merely collected the drainage of the watershed and conducted it
The defen dant relies upon Anchor Brewing Co. v. Dobbs Ferry (84 Hun, 274), and while some of the expressions used by the court may seem to support the contention of the defendant, we are unable to hold that it is controlling in this case. The changes which were under consideration in that case related to alterations in the gz’ade of the streets, and it was not shown that the municipality had constructed or operated any drains in the territoi’y, except such as were purely incidental to the changes of grade and impi-ovement of the streets. In other words, the rainfall of the watershed was not concentrated in artificial channels and precipitated upon private property ; the only change made was that incident to the improvement
There seems to be no reason for the contention of the defendant that the board of health of the city of Mount Vernon, as an independent governmental agency, was responsible for this condition of affairs upon the premises of the plaintiff. The city of Mount Vernon was clearly the moving party in the work done upon the premises of the plaintiff, and in thus maintaining the system of drainage by which the plaintiff suffers damage it cannot escape the responsibility in this way.
The judgment appealed from should be affirmed, with costs.
Goodrich, P. J., Bartlett and Hirschberg, JJ., concurred.
Judgment affirmed, with costs.