295 N.Y. 332 | NY | 1946
This action was instituted in the Court of Claims to recover from the State, pursuant to section
Claimant's quarry, known as the Hill quarry, was adjoined on the west by a quarry known as the Otto Squires quarry. The leakage from the canal which was complained of was onto the Otto Squires quarry which was owned by claimant's wife, subject, however, to an easement, created by appropriation, in favor of the State to overflow and flood the lands of this quarry, the wife's title having been taken subject to this easement with the claimant's knowledge. Claimant had also been in possession of this quarry under a lease for about a year before his wife's purchase in 1938.
When claimant began to work the Otto Squires quarry in 1937 his removal of the stone extended the face of that quarry toward the east and continued in this direction after his wife acquired title thereto until he had brought it close to the common boundary separating it from the Hill quarry, when in 1939 he purchased the Hill quarry and continued his operations from the Otto Squires quarry into the Hill quarry. The rock formation composing the boundary line between the Otto Squires quarry and the Hill quarry was removed in these operations and claimant continued to extend the face of the quarry toward the east. The unavoidable result of these operations was that the water accumulated upon the Otto Squires quarry also gathered upon the Hill quarry, and the only damages claimed in this case are damages from water on the Hill quarry during a period of seven months resulting from these operations of the claimant himself.
We need not pause to speculate whether this case is governed by the doctrine of contributory negligence or ruled by the maxim,volenti non fit injuria. Principles may vary in different situations but, where damage results to the claimant from his own voluntary and deliberate act in the face of known dangers having obvious and inevitable consequences, it matters not which principle is applied (McFarlane v. City of Niagara Falls,
The judgments should be reversed and the claim dismissed, with costs in all courts.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND and DYE, JJ., concur.
Judgments reversed, etc.