47 N.J. Eq. 62 | New York Court of Chancery | 1890
The complainants' seek, by this suit, to have the defendants enjoined from unlawfully discharging surface-water on their land. They own a tract of laud located on the easterly side of Macculloch avenue, which has a frontage on that street of two hundred and thirty feet, and extends back about four hundred and fifty feet. The land is improved. There is a large mansion and other buildings on it. The surface of the tractos uneven. "There is a depression in the northern part of it, nearly ten feet below the surface on the southerly side and about eight feet below the surface on its northerly side. The width of the bottom of the depression, measured from the foot of the slope at the south ‘to the foot of the slope at the north, is between sixty •and seventy feet, and the depression extends the whole depth of the tract, from the street to its rear line. Prior to the improvement of Maeculloch avenue and the adjacent streets by grading and guttering, the proofs show that the course which the surface-water, flowing along the easterly side of Maeculloch avenue, from both north and south, naturally took, when it reached the depression, was to pass from the street on to the complainants’ land, and it there, in consequence of the bottom of the depression being nearly level, spread itself out over the surface without washing • or breaking the land, or causing injury or annoyance of any kind. The bottom of the depression was unbroken by a waterway of any kind; part of it was in sod and another part was used as a garden. A wagon road, leading from the mansion to the barn in the rear, ran across it, and a corn-crib, with a chicken-house beneath, stood in it where its surface was lowest. The water flowing along the westerly side of the avenue flowed off on land lying on that side. None of it discharged itself on land of the complainants, except in rare instances, when unusual floods occurred, and at such times, that which flowed over mingled itself with that flowing along the easterly side, and the whole
The defendants, some years ago, improved Macculloch avenue- and several of the adjacent streets by grading and guttering.. Their power to make such improvements is not disputed. But the complainants say that, in this instance,- the defendants so-exercised their power as to inflict two continuous and irreparable-injuries on their 'land. First, they say that the defendants so-graded the. streets they improved as that the surface-water, fromi a larger area, is carried away from where it would naturally go * and made to flow to their 'land and there discharge itself. The-special grievance here complained of is, that, by the scheme of drainage adopted by the defendants, the quantity of water which, would naturally discharge itself on the complainants’ land has-been very largely increased. And, in the second place, they say,. that the defendants have so arranged the discharge of the water carried to their land, by the street gutters, as to cause-the water - to make an open channel for itself through their land, and that, by this means, an easement, for the benefit of the public, has-been fastened on their land, for which no compensation has been made. In other words, that the defendants have appropriated, their land to the use of the public, without either making com- - pensation or providing that compensation shall be made.
The law pertinent to the first ground of injury, alleged by the-complainants, is well settled in this state.- No responsibility attaches for damage done by the diversion of surface-water by' the public authorities, where the diversion! is merely incidental to and occasioned by the making or alteration, of street grades. Town of Union ads. Durkes, 9 Vr. 21. Where, however, a municipality puts into execution a scheme of improvement by which, surface-water, collected from a large area,.is prevented from following the grades of the streets, and', is- carried^.by artificial!
But their second claim is well founded. That, in my judgment, rests on a solid foundation. There is no dispute about the facts. The defendants, in executing their scheme of improvement, constructed a basin in Macculloch avenue, opposite the depression in the complainants’ land, for the reception of the water flowing along both sides, and from both directions, and they also built a culvert, about three feet in width and two feet in depth, extending from the basin to the complainants’ land. This arrangement resulted, as it manifestly was intended it should, in pouring all the water collected from the area of drainage on the complainants’ land at a single point. And the consequence is, that the- water has, by its own force, made a channel for itself all the way through the complainants’ land. This channel is irregular in width, depth and course. In some places it is five feet wide and in others only three, and it is from two to three feet in depth. One of the witnesses describes its course as zigzag. This method of discharging the water collected in the basin condemns the complainants’ land to public use just as effectually as that purpose would have been accomplished if the defendants had made an actual entry on their laud and opened a channel through it. Had the defendants attempted to acquire a right of drainage in that way, the illegality of their course would have been so conspicuous as to stand without excuse and absolutely indefensible, and yet, a very little consideration will show, as I think, that the course they did pursue, to attain the same end, is just as plainly contrary to law. If the defendants have , a right to maintain the culvert in its present position, and, by means of it, discharge all the water collected from the area of drainage on the complainants’ land, at a single point, then it follows, as a necessary legal consequence, that the defendants have, by their own act, and- without compensation, fastened an easement on the complainants’ land, which will endure while the culvert endures, and that the complainants will, to the extent of
“That private property shall not be taken for public use without just compensation ; but land may be taken for public highways, as heretofore, until the legislature shall direct compensation to be made.”
Since the adoption of this provision the legislature has directed that when land is taken for public roads it shall be paid for, and the result is, as the supreme court, speaking by the chief-justice, has said, “that every vestige of the ancient jus publicum, to seize the property of the citizen without rendering to him its value, has been entirely abolished in this state.” Ward v. Peck, 20 Vr. 42, 44- The defendants cannot do by indirection what they have no right or power to do directly, and they must be :keld to have intended to do those things which are the natural .and inevitable consequences of their acts. This being so, it must •be adjudged that they have unlawfully appropriated the complainants’ land to public use.
The complainants are entitled to a decree prohibiting the defendants from maintaining the culvert for the purpose of discharging the water passing through it on to the land of the complainants. The complainants are also entitled to costs.