49 A.D. 454 | N.Y. App. Div. | 1900
The facts set forth in the foregoing statement were virtually uncontroverted upon the trial, and it was held by the learned trial court that they failed to establish a cause of action in favor of the plaintiff.
At the conclusion of the evidence, and when it was apparent that a verdict was about to be directed in favor of the defendant, the plaintiff’s counsel asked permission to go to the jury upon the following questions, viz. :
*457 (1) As to whether the stream which runs through the Gray farm, the waters of which were obstructed by the dam erected by the defendant, was a natural watercourse.
(2) Whether the stream which is known as the Boyd ditch, the waters of which emptied into and supplied the plaintiff’s reservoir, was a natural watercourse ; and
. (3) Whether, conceding that neither stream was a natural watercourse, the defendant rendered itself liable in this action for the pollution of the waters flowing therein.
These requests were all denied, to which rulings the plaintiff’s counsel duly and severally excepted, and these exceptions present the questions which are to be determined upon this review.
It will probably lie conceded that the last of the above-mentioned requests involved a question of law rather than one of fact, and that as such it was one which properly belonged to the court to dispose of. It follows, therefore, that the plaintiff’s only ground of complaint, if he has any growing out of the refusal of that request, is, not that the court refused to submit this question to the jury, but that it ivas erroneously decided, from a purely legal standpoint.
The proposition, concisely stated, upon which the plaintiff apparently rests his contention, is that, even conceding these two streams to be artificial channels and designed simply for the accommodation of surface waters, the defendant has no right, under the circumstances of this case, to pollute such waters to the in jury of the plaintiff’s premises.
We are by no means satisfied that this proposition is untenable, for, while it is the undoubted rule that every person has the right to, drain the surface waters from his own land in order to render it more healthful, useful or productive, and in so doing to alter their course and cause them to flow in a new direction and upon the land of a contiguous proprietor, if necessary (Ang. Wat. § 108a; Waffle v. New York Central R. R. Co., 53 N. Y. 11), yet he has no right to collect such waters from a considerable area by means of a ditch and then discharge them in a single channel upon the land of his neighbor (Barkley v. Wilcox, 86 N. Y. 140; Bastable v. City of Syracuse, 8 Hun, 587; Carll v. Village of Northport, 11 App. Div. 120), nor can he divert the water of one stream into another, not its
It is not seriously denied, but if it were the evidence is such as to warrant the conclusion, that the defendant, by the erection of its dam in 1895, diverted the course of the surface waters upon its premises from the Gray to the Boyd watercourse, and caused such waters to flow in a polluted state on to the plaintiff’s land, and this being so, we do not see why the case does not fall within the principle of the rule laid down in the case of McCormick (supra), to. which reference has just been made. But without deciding this question, we pass to the consideration of another and equally important one.
The question of whether or not the Boyd stream was a natural watercourse was certainly one of fact, which the plaintiff was entitled to have passed upon by the jury, and the same might, perhaps, be said with equal propriety of the Gray stream; but inasmuch as the waters of that stream have been completely obstructed and diverted into the Boyd ditch, and it clearly appeal’s that the injury to the plaintiff’s land is attributable to such obstruction and diversion, the character of the Gray ditch, so far as this case is concerned, is a matter of minor importance.
There is probably little, if any, misunderstanding as to what constitutes a natural watercourse, but it may be characterized as a stream of water flowing in a defined bed or channel, with banks and sides, having permanent sources of supply, although it is not essential that the flow should be uniform or uninterrupted. (Barkley v. Wilcox, supra.)
Whether or not the stream known as the Boyd ditch falls within this definition is a question which was quite vigorously litigated upon the trial. Upon the part of the defendant it was contended, and much evidence was given to sustain the contention, that it wap an artificial and not a natural stream; that there was no spring at its source; that its bed or channel was not defined; that in places it appeared to be nothing more than a furrow which had at some time been plowed in order to drain the surface of the adjoining lands; and that upon the Rippey premises the stream widened out into a
Manifestly this character of evidence had at least some tendency to establish a natural watercourse, and without intending to intimate the impression it produces upon our mind, it is sufficient to say that it certainly raised an issue of fact upon a question of vital importance in this case; for it will scarcely be denied that if the defendant did divert surface waters from their natural course and thereby pollute the waters of a natural, running stream, to the damage of the riparian owners, it is liable for such injury as results from its wrongful act.
In this connection it is proper to suggest that the present case presents a very different question from the one which arose and was decided byr this court in Strobel v. Kerr Salt Company (24 App. Div. 626). There the waters of Oatka creek, a natural stream, were contaminated, it is true, by salt and other foreign substances which came from the defendant’s mines, but they reached the stream in the course, of natural drainage, while in this case the impurities were diverted byT the defendant from their natural course and caused to flow in a new and opposite direction.
We ai’e not unmindful of the contention so strenuously made and
There are some other features of this case to which reference might perhaps be made, but in what has already been said we have indicated so plainly that in our opinion it was error to take the case from the jury, that further discussion seems unnecessary.
All concurred.
Plaintiff’s exceptions sustained and new trial ordered, with costs to the plaintiff to abide the event.